Worker

Employer

Anonymised Parties

A Chef

A Restaurant

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00062465

11/08/2023

It was the Employee’s evidence that he was dismissed on 6 March 2023 by the Employer via text message. The employee confirmed he had less than 12 months service with the Employer.

It was the Employee’s complaint that he worked as a chef with the Employer from 27 June 2018 to 6 March 2023 and earned €12.50 per hour. No contract of employment was provided. The Employee relied on a letter dated 7 January 2023 from his Employer stating that it will close for “annual leave from the 15th January until the 14th March. There will be no hours available during this time for our current staff”.

It was the Employer’s submission that the Employee’s last date of work was 14 January 2023. His employment was terminated as was the case every year when the restaurant closed until mid-March. The Employee was aware of this  and took the time to go on holiday.

The Employer accepted he sent the text message on 6 March 2023 but noted there may be work for the Employee later in season as the restaurant was overstaffed upon opening.

It was the submission of the Employer that the Employee requested the letter of 7 January 2023, a request made of other employees who needed the assistance from the Department of Social Protection. It was not intended as confirmation of continuous employment during the shut down period.

The Employer denied the Employee was dismissed.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

There was no contract of employment provided to the employee. The employee worked for months at a time previously and returned on an annual basis since 2018. However, it was accepted that in 2022/2023, the restaurant remained open longer into the season during December and closed on 14 January 2023, during which the employee worked. While I do accept that the casual nature of the work suited the employee previously, the absence of a contract of employment, whether fixed or permanent, leaves both parties in a state of ambiguity. The only contemporaneous document that exists from the period at the heart of the dispute is the letter of 7 January 2023, which does not mention layoff, termination of employment, or any words to indicate that the employee would not be returning in March 2023. Consequently, it was reasonable for the employee to believe he was returning to work with the employer after the employer’s annual leave break. I am further convinced by this by the submission by the restaurant supervisor who returned to work with the employer in March 2023 and 2024, along with the employer’s own reference to other employees who were chosen over the employee because "he had worked with us least". These two facts can only lead to the conclusion that at least a proportion of the employees returned to the employer year after year.

Consequently, I find the Employee was unfairly dismissed from his employment on 6 March 2023.

On the basis the Employee was out of work from 6 March to 20 April 2023, it is recommended that the Employer pays the Employee compensation in the sum of €2,437.50 for this period.

Unfair Dismissal – Industrial Relations