Complainant

Respondent

Anonymised Parties

A Sous chef

A Hotel

Representatives

Niamh Ní Cheallaigh of IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061850-001

28/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061850-002

28/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00061850-003

28/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061850-004

28/02/2024

The complainant says he was unfairly dismissed, did not receive minimum notice payment and was not compensated for working Sundays and Public Holidays.

The respondent submits the complainant started working for them on 12 August 2019 as Chef De Partie. At the time of his dismissal he was earning €1,453.85 gross per fortnight.

Unfair Dismissal

On 21 August 2023 an allegation of sexual harassment was made against the complainant by a female colleague (Ms A). The allegations were that the complainant made inappropriate comments about Ms A’s appearance and that when she asked the complainant for 2 eggs for breakfast he presented them to her with a sausage in between, in a suggestive way.

On 22 August the complainant was given a copy of the allegations made against him, a copy of the disciplinary policy and an invitation to an investigation meeting on 25 August. The investigation was carried out by the Commercial Director. The complainant denied making comments about Ms A’s body or appearance. Regarding the eggs and sausage the complainant said the plate was small. Ms A subsequently said she never asked for a sausage. The complainant asked the Investigator to talk to a colleague (Mr B) but this was not possible during the investigation as Mr B was on long term absence. During the investigation meeting the complainant raised allegations of staff members being drunk during the breakfast shift. Notes of the investigation meeting were sent to the complainant. He commented that he was in Mauritius when the comments were alleged to have been made. It was noted the comments in question were made after the complainant returned from Mauritius. The Investigator held further meetings and gathered statements from the Restaurant Manager, the Breakfast Supervisor and the F&B Coordinator. It came to light the complainant had been discussing the investigation with colleagues and the chefs had been making jokes about the case. The F&B Coordinator said she had witnessed the complainant being inappropriate at work. The Breakfast Supervisor also said the complainant made inappropriate comments of a sexual nature.

On 1 September the complainant attended a second investigation meeting, after he had been given a copy of statements from other employees. During the meeting the complainant admitted discussing the investigation and sharing statements of employees with chefs in the kitchen. After this meeting the complainant was suspended on full pay to ensure confidentiality of the process and to protect Ms A .

On 5 September the Investigator emailed the complainant and Ms A the investigation report, which had a recommendation for the issue to move to disciplinary for the complainant.

On 6 September the complainant was invited to a disciplinary meeting by the Director of Operations on 7 September. At the meeting the complainant raised his request for CCTV footage to be considered and it was explained to him the CCTV footage had no sound and was not within the remit of the investigation.

On 11 September the complainant’s employment was terminated on the grounds of gross misconduct. The complainant appealed the outcome. An appeal meeting took place on 22 September. On 28 September the complainant was advised his grounds of appeal were not upheld and the dismissal was upheld.

The respondent submits that Section 8 of the Unfair Dismissals Act states: “the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee”. The respondent says they considered all the facts, the responses and explanations of the complainant were not considered reasonable nor sufficient to mitigate the extreme seriousness and far-reaching implications of his actions. These actions amounted to gross misconduct.

The respondent submits that “a reasonable employer in the same position and circumstances” [Looney & Co. Ltd, v Looney, UD 843/1984] would have reached the same determination in the circumstances of this case.

The complainant submits the complainant was afforded all benefits of fair procedure, in line with their policy, SI 146/2000 the WRC Code of Practice on Grievance and Disciplinary Procedures and the universal principles of natural justice.

Sunday Working: the respondent submits the complainant was compensated for working Sundays and this was included in his annual basic salary. This was in his contract which stated “Your payment for working Sundays is included in your basic pay”.

Public Holidays: the respondent submits the complainant has not given any exact reference period, dates, times etc to particularise his complaint.

The respondent submits that a total of 30 public holidays fell during the complainant’s employment. The complainant worked 20 of those and received pay and public holiday benefit in the form of 160 hours lieu time. For the 10 public holidays he did not work the complainant received 80 hours of public holiday pay.

The respondent submits the reference period for this complainant is from 8 March 2024 (when the complaint was lodged) to 8 September 2023. The complainant was dismissed on 11 September 2023 and no public holiday fell from 8 – 11 September 2023.

Minimum Notice: the respondent submits that Section 8 of the Minimum Notice and Terms of Employment Act states: “Nothing in this Act shall effect the right of any employer or employee to terminate a contract of employment without notice because of the misconduct of the other party”. The respondent deemed the complainant’s actions amounted to gross misconduct and this gave them the right to terminate his contract without notice and this was reasonable and justified given the facts uncovered.

The complainant says he is from Mauritius and worked for the respondent as a sous chef from August 2019 until his dismissal on 11 September 2023. He submits that on 23 August 2023 he was called into the office of the executive chef and was read out complaints of a sexual nature made against the complainant by a colleague (Ms A). Then he was called into an investigation meeting on 25 August 2023 with the Commercial Director. He told the Commercial Director he was out of the country at the time of one of the complaints and he denied the other events took place in the manner described by Ms A.

He told the Investigator that on 3 August, 2 weeks before Ms A made the complaints, she came to his work section and asked if he wanted to date her. The complainant told Ms A he had a wife. He asked the Investigator to check the CCTV footage of this incident. The Investigator decided the complainant was guilty of gross misconduct without any evidence.

He was called to a meeting with the Director of Operations on 7 September 2023 where he just decided to dismiss the complainant.

The complainant submits the dismissal was unfair and this has affected his mental health.

He submits he did not receive 2 weeks minimum notice to which he was entitled.

He submits he worked on Sundays and Public Holidays but received no compensation.

CA-00061850-003 Unfair Dismissal

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company. The respondent says the complainant was dismissed because he was found to be guilty of gross misconduct.

Section 6 of the 1977 Act provides:

“6. – (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

... (b ) the conduct of the employee”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. stated the following:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

The respondent submits they carried a full investigation and disciplinary process in accordance with fair procedures. The decision to dismiss the complainant was because his conduct amounted to gross misconduct and meant all trust was broken. In these circumstances they assert their decision to dismiss the complainant was reasonable.

Throughout the investigation and the disciplinary process the complainant denied that the events which formed the complaint against him took place. He also made counter allegations against Ms A and her colleagues.

I accept that the investigation carried out by the Commercial Director was thorough, in ensuring that, as well as Ms A and the complainant, all relevant members of staff were interviewed and their statements given to the complainant and Ms A. The investigation concluded that the events did take place and recommended the instigation of a disciplinary process. The disciplinary process found nothing to throw doubt that the events took place and the complainant’s behaviour amounted to gross misconduct and warranted dismissal. The appeal upheld this conclusion and decision.

Nothing that the complainant has put forward in written or oral evidence has thrown any doubt as to the actions of the respondent. I find they acted reasonably in dismissing the complainant and conclude that his dismissal was not unfair.

 CA-00061850-001 Organisation of Working Time Act – Sunday working: it is clear from the complainant’s contract that his salary included compensation for working Sundays.

CA-00061850-002 Organisation of Working Time Act – Public Holidays: the complainant did not particularise his complaint regarding compensation for working Public Holidays. In these circumstances I conclude this complaint is not well founded.

CA-00061850-004 Minimum Notice and Terms of Employment: the complainant says he did not receive payment in accordance with this legislation when he was dismissed. As submitted by the respondent, Section 8 of the Minimum Notice and Terms of Employment Act states: “Nothing in this Act shall effect the right of any employer or employee to terminate a contract of employment without notice because of the misconduct of the other party”. As I have concluded that it was reasonable for the respondent to dismiss the complainant. Therefore, they can avail of section 8 when they dismissed the complainant without notice because of his misconduct.

CA-00061850-001 Organisation of Working Time Act – Sunday working: for the reasons given above I find this complaint is not well founded.

CA-00061850-002 Organisation of Working Time Act – Public Holidays: for the reasons given above I find this complaint is not well founded.

CA-00061850-003 Unfair Dismissal: for the reasons given above I find the complainant was not dismissed unfairly.

CA-00061850-004 Minimum Notice and Terms of Employment: for the reasons given above I find this complaint is not well founded.

Dismissed for gross misconduct