Complainant

Respondent

Parties

Richard  Mattey

Prospect Park Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Glenn Cooper Dundon Callanan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063542-001

18/05/2024

The Complainant submits that he was a Bar manager employed by the respondent for 3 years.

He submitted a claim under the Unfair Dismissals Act on 18th of May 2024 alleging that he was unfairly dismissed by the respondent on 5th of May 2024  after a verbal altercation with the owner.

The respondent denies that a dismissal took place. 

A separate claim form was submitted on 21st of June 2024 in respect of a claim under section 7 of the Terms of Employment (Information) Act, 1994 and two other claims which have since been withdrawn.   All matters were dealt with at the hearing on 8th of July 2024.   

Post hearing documentation was requested from the parties and final information in this regard was received on 2nd of September 2024.  

A separate decision has issued in respect of the related claim referenced ADJ-00052574.

The complainant submits that

He worked as Bar manager for the respondent for over 3 years

He was unfairly and illegally dismissed from his position on 5th of May 2024 after a verbal altercation with the owner 

He submits that both assistant managers , were working when this happened and following the altercation Assistant Manager J asked him “Like we can ask him to apologise and hire you back right now and walk out if he doesn’t”

The complainant submits that J then told him if he doesn’t give (the complainant) his job back, they would all quit.

the complainant submits that he later received a phone call from the other Asst Manager A saying the owner  did not agree to re-hire the complainant and so they had all quit and were wondering if the complainant wanted to meet up with them after work,  The complainant submit s  that this is proof that he was dismissed.

He submits that the respondent disputes the dismissal and alleges that the complainant was sent home for a “cooling period”  but the complainant states that this was never mentioned or articulated in any form nor was he told how long this “cooling period” would last.

The complainant further submits that  he has repeatedly told the owner that he didn’t want to be shouted at while working, to which he responded, “I’m not yelling I just get excited, if I was REALLY yelling you would know it”.

The complainant submits that he did not attend work after the 5th of May and received an email from the respondent on 9th of May 2024, he attended a meeting with the respondent on the 17th of May, where the respondent had his representative present

The complainant submits that the representative did most of the talking at the meeting and that there was no apology made or any form of offer to give the complainant his job back because according to them, the complainant was still employed.

The complainant submits that in this meeting he indicated that he  had no interest going back to work under the same intolerable conditions.

The complainant further submits that the respondent tried to get him to agree that he was not dismissed but was only sent on a cooling off period” but that the complainant repeatedly told the respondent that he was fired as he was told to “hand in (his) keys”.

The complainant submits that the morning after he was fired, he was contacted by a customer of the bar who offered him a job starting the following day in a marketing and promotion role which he states he jumped at as he had rent to pay and couldn’t afford to be losing money.

The complainant submits that  this job doesn’t pay as well nor is the work consistent.

 The complainant submits that the estimated yearly income is significantly less than what he was paid by the respondent, and it also does not have the same bonus package either , which was based on sales of the bar.

The complainant submits that last year the bar was close to hitting the 475k mark which would have net him a bonus of 7.5k , unfortunately the complainant submits that in that year the complainant  opted for a pay rise instead of a bonus because at that time he didn’t have as much control in the bar to influence its income/profits.

 The complainant submits that despite his choosing to opt for a pay rise instead of a bonus the previous year the respondent still offered him a bonus of 4k for his hard work anyway, which he appreciated.

The respondent denies that a dismissal took place.

The respondent submits that there was an argument between the complainant and the respondent owner Mr. Banim (Managing Director of the respondent) just after 6.00pm on 5 May 2024 and that during this argument the complainant was angry and said he was going to go home and would be back in an hour.

The respondent submits that he replied to this saying that the complainant should go home for the rest of the evening, and they would deal with this tomorrow.

Before he left the building, the complainant went into the bar and told assistant manager J that he was leaving.

The respondent submits that he asked the complainant for his keys on his way out and was told he did not have them.

The respondent submits that the complainant did not turn up for work the next day and within a few days the respondent heard gossip in the village that the complainant was alleging that he had been dismissed.

On Thursday, 9 May 2024 the respondent emailed the complainant to confirm that his employment had not been terminated and suggested that they should meet, but the complainant said he had already taken up a new job.

The respondent met with the complainant on 17th of May 2024 and again assured him that his employment was not terminated but the complainant stated that he had found another job and would not be coming back to work for the respondent.

Relevant Law

Section 1(a) of the Unfair Dismissals Acts 1977 – 2015 (“the Acts”)  defines dismissal as including “the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee .  . . .”

There must be a dismissal as defined by s 1 of the Acts before a Complainant can obtain redress under the Acts. Where the fact of dismissal is in dispute, it is for the Complainant to show that a dismissal occurred (Walsh v Sweeney, UD 751/1991). If that burden is discharged, the burden of proof then shifts to the Respondent to show that the dismissal was carried out fairly.

Section 6(1) of the Acts provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(7) of the Acts provides that in determining if a dismissal is an unfair dismissal, regard may be had to the: (a) reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) extent (if any) of the compliance or failure to comply by the employer with a disciplinary procedure or with the provisions of any code of practice.

Section 7(1) of the Acts provides:

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement . . .  or

(b) re-engagement . . . or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances . . . . ”

The complainant advised the hearing that he was unfairly and illegally dismissed from his position  as Bar Manager on 5th of June following a verbal altercation with the owner.

The respondent witness Mr. Banim agrees that there was a verbal altercation between the parties, but he denies that a dismissal took place.  The respondent advised the hearing the complainant was sent home  for a cooling off period that night.

The complainant says this was not true as he states that he was also asked by the respondent to hand in his keys.

The complainant added that following the incident the two assistant managers walked out in support of the complainant after they allegedly requested  that the respondent apologise to the complainant and give him his job back. 

The complainant advised the hearing that he received a call from one of the Assistant managers shortly afterwards saying the respondent  did not agree to re-hire the complainant and so the other two staff quit.

The complainant in outlining the events which led to his dismissal advised the hearing that on the day in question he was working in the bar and was a staff member down.   

The complainant advised the hearing that that the bar was busy, and so he phoned the owner, to come in and help out as he was busy in the bar and he also and had to change Kegs and get ice. 

The complainant stated that when the respondent arrived the complainant asked him if he could help out by getting a bucket of ice and the respondent then stormed off once he asked this and walked out of the bar.   

The complainant advised the hearing that the respondent then came back into the bar and the complainant told him not to worry about the ice as he would get it himself.  The complainant states that the respondent became angry after this comment and told the complainant they needed a meeting right now.  The complainant agreed to the meeting which he states took place in the hallway initially, but the complainant added that the  respondent then stood on the stairs shouting at him and stating that he was not ‘the ice boy’.  

The complainant advised the hearing that he was concerned that customers could hear the shouting so he suggested they go upstairs so no one could hear what was happening   The complainant advised the hearing that he told the respondent that when he speaks to him like that it makes him want to leave but he doesn’t want to do so because of the staff.  The complainant said that he added that  the respondent always offers problems but never solutions as to how he should deal with the bar. The complainant advised hearing that he then mentioned to the respondent that he had drafted a letter outlining the respondent’s treatment of him and referring to it as workplace harassment the complainant stated that the respondent became even angrier at hearing this and so the complainant stated that hethen told the respondent that the conversation was over and that he was going to go.

The complainant stated that the respondent then told him to hand in his keys.   The complainant advised the hearing that he then went downstairs and told the two assistant managers J and A that he had been fired and stated that he then went home and received messages and phone calls from the assistant manager J whom he alleges asked the respondent to give the complainant his job back which he claims the respondent refused to do.

The complainant advised the hearing that he did not attend work the next day as he considered himself dismissed and he received no contact from the respondent until the 9th of May four days later when he received an email stating that the respondent wanted a meeting with him. 

The complainant submits that it was clear that respondent had also considered the complainant to be dismissed as he did not contact him the day after the incident to check why he had not attended work even though he was rostered to work that day.

 The complainant advised the hearing that on a previous occasion when he had not attended work when rostered to do so, the respondent contacted him straightaway asking where he was even though the complaint on that occasion had booked a day off . 

The complainant advised the hearing that the respondent only contacted him when he heard gossip in the village regarding the complainant having told people that he was dismissed by the respondent.  

He stated that the respondent in the email of the 9th of May asked for a meeting with the complainant the next day, but the complainant could not facilitate this as he already had a new job and so the parties met on the 17th of May where the respondent attended this meeting with his representative and that in this meeting he denied dismissing the complainant insisting  that he was still employed by him.    The complainant advised the hearing that he then advised the respondent that he had since found a new job that he would not be returning to work for the respondent.    He added that the new  job was not as well paid and also that he had less hours, but he stated that he was sick of the way he was being treated by the respondent.

The respondent advised the hearing that he had not dismissed the complainant but had merely sent him home to cool off following the altercation.

The respondent advised the hearing that the working relationship between himself and the complainant was generally good over the years, but he added that sometimes he felt that the complainants  attitude towards him as owner of the business was disrespectful, and that the complainant had often overstated his position and was domineering.

The respondent stated that this came to a head on the weekend of 19-21 April 2024 which was terribly busy, and he decided on the Saturday (20 April 2024), as the bar was so busy, that glasses would be withdrawn, and all drinks should be served via plastic cups.

On the Sunday afternoon (21 April 2024), the bar was so busy that the respondent advised the complainant that they consider going to plastic cups again instead of glasses, but he stated that the complainant was very opposed to this direction and worked feverishly to keep up with the glasses to prove it was an unnecessary decision.

The respondent stated that he decided to let it go, as the customers stabilized in numbers.   The respondent added that he spoke to the complainant the next day and advised him that he would need to follow his direction if that situation happened again and if the owner himself decided to go to all plastic cups, that the complainant  should not be trying to resist the direction of the owner and that his behaviour was making the owner feel uncomfortable in his own bar.

Both parties agree that the incident which led to the altercation occurred on Sunday, 5 May 2024 (the Bank Holiday weekend) when the complainant was working at the bar with two other employees K and A and that the complainant phoned the owner at about 6 pm and said that there was a rush of customers at the bar and asked if he could  please come in.

The respondent stated that he came into the bar and found that the bar area was almost empty and so he went out to the garden at the back and picked up glasses.   The respondent stated that the complainant  was in the bar doing glasses, but the other two bartenders were just standing there as there was only one customer at the bar.

The respondent advised the hearing that he was annoyed about this  and asked why he had been called in when the bar was not busy to which the complainant  replied that they had a rush of customers, but they all went out to the garden.   The respondent stated that he then went  back outside and then came back into the bar when the complainant spoke to him in front of a customer and in an ordering tone and said ‘Can you get ice?’ The respondent advised the hearing that he replied  ‘No, you get the ice we are not that busy’.

The respondent stated that he was not happy that he had been called into the bar unnecessarily and that he was being ordered about again in his own bar and so he decided to discuss this matter with the complainant and told him, that he was not happy that he spoke to him like that, especially in front of a customer.    The respondent then asked the complainant to have a chat and they both went through the Bar Kitchen into the hall where they had a further discussion in the hall and subsequently went to go upstairs to the office but ended up having a further discussion on the landing.

The respondent advised the hearing that he told the complainant at that time that he was being disrespectful, he states that he himself was animated, but not shouting or angry.   The respondent stated that the complainant then responded saying that he had been preparing a formal letter with a list of complaints about the respondents conduct with customers and then said, I am going to go home, I will be back in an hour.    

The respondent states that he was concerned about how angry the complainant was and wanted him to cool off, so he told him to go home for the rest of the evening adding that they were done for the day.

The respondent stated that the complainant then added, "Always a problem; never a solution". And as he was leaving the premises, the respondent asked for his keys which he says he did for security reasons and to which the complainant replied that he did not have the keys.  The respondent advised the hearing that he later found the keys by the dishwasher.  

The respondent advised the hearing that after the complainant left the premises, the respondent observed that the other two staff members J and A were both receiving and replying to texts between serving customers and so the respondent said to both staff members that he would speak to them at the end of the shift later that night about the situation.  

The respondent advised the hearing that that J then told him that he needed to apologize to the complainant adding ‘and I am out of here’  the respondent stated that both J and A then left and so with no staff, the respondent was forced to close the bar.    

The respondent added that he opened the following nights (6, 7, 8 May) and tried to run the bar by himself, but then was forced to close the bar from 9 May until when he could get new staff and reopen again on 30 May 2024.

The respondent states that the complainant did not turn up for work that week but within a couple of days the respondent heard gossip around the village that the complainant was alleging that he had been dismissed and so the respondent sent an email to the complainant dated 9 May 2024 confirming that his employment had not been terminated and asking to meet.  This meeting took place on 17 May 2024 where the complainant confirmed that he was not returning to work with the respondent and had found alternative employment.

The respondent advised the hearing that there was no dismissal but concedes that there  was an argument following which the complainant was sent home to cool off and then failed to return to work.    The respondent advised the hearing that in his opinion the complaint had wanted to leave his employment on the night in question and that he most likely had the other job lined up as he started a new job two days later.  In addition, the respondent stated that there was no need for the complainant to mention the letter alleging harassment on the night in question unless he was trying to provoke the respondent which it appears to him he had been trying to do. 

The respondent at the hearing agreed that he did not contact the complainant in the days immediately following the altercation despite the complainant not showing up for work.

The respondent advised the hearing that he had tried to run the bar himself but stated that he was eventually forced to close the bar for two weeks as he had no staff.   The respondent stated that the other two staff left because of the complainant.

The respondent advised the hearing that the complainant at the 17th of May meeting indicated to the respondent that he was not interested in going back to work in the Bar under the same working conditions and  referred to the respondent business as a “sinking ship” .

The complainant advised the hearing that he would have been willing to go back if the respondent had apologised or tried to discuss a guarantee of no more verbal harassment  and increased pay.

The complainant told the hearing  that the morning after he was fired, he was contacted by a customer of the bar who heard that he was now unemployed and offered him a job starting the following day in a marketing and promotion role.   The complainant stated that he jumped on this offer as he had rent to pay and couldn’t afford to be losing money.   The complainant added that  this job doesn’t pay as well nor is the work consistent.

The complainant added that there is also no bonus in the new job and that the bonus in his job with the respondent would have been substantial had he remained in the job.   The complainant added that his bonus with the respondent was based on sales of the bar.  The complainant advised the hearing that the previous  year they were close to hitting the 475k mark which would have net him 7.5k of a bonus. 

The complainant added that unfortunately for him in that year he had opted for a pay rise instead of a bonus because at that time as he  didn’t have as much control in the bar to influence its income/profits.   The complainant advised the hearing that notwithstanding this agreement to forgo the bonus in place of pay rise  the respondent still offered him €4,000 bonus anyway for his hard work anyway, which the complainant had appreciated.

The complainant added that he is still losing money given that his new job pays less than the old job. 

The respondent at the hearing questioned why the complainant at a time of full employment remained in a job with less pay and hours when he could easily have secured a better job.  The complainant in response to this stated that it is hard to find another job as good as the one he had with the respondent in terms of the freedom and control  he had there the complainant also stated that he had the opportunity while working with the respondent to use his ingenuity and creativity to make a positive impact on the  bar.   He also added that the hours he works for the promotions company are difficult to work around and that he would find it difficult to find another job to fit in around those hours.

Having considered the totality of the evidence adduced and taking into account all of the circumstances  I am satisfied based on the balance of probabilities that it was not unreasonable for the complainant to consider himself dismissed following the incident on 5th of May especially given that he was asked to hand over his keys. 

In addition, the fact that he received no communication from the respondent when he did not show up for work the following day or the day after.  I also note that both parties agreed that two other staff members walked out that night after the complainant left the premises.  I find it unlikely that this would have happened if the complainant was merely told to go home for a cooling off period. It is also clear that no procedures were followed by the respondent.    

Accordingly, I find the Complainant was dismissed and that this complaint under the Unfair Dismissal Acts, 1977-2015 is well-founded.

Having regard to the totality of the circumstances of this case I consider an award of €2,500 in compensation to be appropriate in the circumstances.  

I find the Complainant was dismissed and that this complaint under the Unfair Dismissal Acts, 1977-2015 is well-founded and I direct the respondent to pay the complainant €2,500 in respect of the dismissal.