Complainant

Respondent

Parties

Ahmed  Elborhamy

Aramark Catering

Complainant

Respondent

Anonymised Parties

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Representatives

Barry Crushell Crushell & Co

Aleksandra Tiilikainen IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00053275-001

14/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00053275-002

14/10/2022

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

CA-00053275-003

14/10/2022

The Complainant was employed as a Chef with the Respondent since 25 January 2001 and was paid €768.93 per week. He stated that he was dismissed from the Respondent on 6 June 2022 when his name was removed from the Respondent’s work roster. The Respondent disputed this.  The Complainant also alleged that he did not receive a written statement of his terms and conditions of employment.

The Complainant stated that his problems in the work environment initially began to surface in October 2001 when his work permit was up for renewal. Although the permit was eventually renewed in April 2002, he described the waiting period as extremely challenging for him. He further stated that additional problems emerged in 2008 and 2009, coinciding with his application for a permanent visa. He asserted that he had repeatedly requested a copy of his employment contract but never received it, which left him feeling quite insecure in his position.

Furthermore, he stated that issues started to escalate during 2019 and 2020 in his interactions with the Head Chef, leading to increased pressure and stress. He also highlighted that, after the Covid lockdown, he was the final chef in the kitchen to receive a recall to work, only returning in November 2021.

Upon his eventual return, on 8 November 2021, he encountered the same pattern of aggressions from the Head Chef that he had experienced previously. Specifically, he stated that the Head Chef continually criticized his work pace throughout the day and closely monitored his productivity. In response to the Head Chef's behaviour, he lodged a complaint with the Executive Head Chef on 9 November 2021, and also submitted a sick certificate for the following week due to stress and anxiety. On 15 November 2021, the Executive Head Chef forwarded his complaint to the HR Advisor, who subsequently engaged in correspondence with the Complainant regarding his grievances. Despite assurances from the HR Advisor that a mediated discussion between the Complainant and the Head Chef would be arranged in early 2022, the Respondent never initiated this process.

Although the Complainant stated that the Head Chef left the Respondent's employment in March 2022, he was informed by some colleagues, towards the end of May 2022, that he would be returning to work there because he had been appointed as the Executive Head Chef. Additionally, the Complainant stated that colleagues informed him that even though his name had been included on the roster during the first few weeks of his annual leave in May 2022, the new Executive Head Chef removed his name entirely from it on 6 June 2022. He interpreted this removal from the roster as an indication that his employment with the Respondent had been terminated. This interpretation was based on his previous experiences, where anyone who left the Respondent's employment had their name removed from the roster, while those on leave, as he was at the time, had their names retained on the roster.

The Complainant was employed by the Respondent from 25 January 2001 as a Commis Chef, and his most recent position was Sous Chef.

On 29 May 2019 an incident took place between the Head Chef and the Complainant. The Executive Head Chef was present for part of the incident. The matter was resolved on the same day and both parties agreed to put the issue behind them. The Deputy Manager subsequently confirmed in writing that all parties apologised to each other and agreed to move on from the incident.

The site where the Complainant worked was subsequently closed due to Covid on several occasions, which resulted in all employees being placed on temporary lay-off: namely from 13 March 2020 to 10 July 2020, 18 September 2020 to 4 December 2020 and 24 December 2020 to 26 July 2021.

On 28 September 2021, the Executive Head Chef emailed the Complainant to ask him when he could start back at work post Covid so he could be included on the roster. The Complainant replied that he would not be returning to work for the next few weeks as he needed time to get himself prepared and mentally ready to return to work.

Although the Complainant subsequently returned to work on 8 November 2021, he emailed the Executive Head Chef on 9 November 2021 and informed him that he was not coming to work that day because of difficulties he had with the Head Chef the day before. Specifically, he stated that he was given a list of jobs to carry out and after an hour and fifty minutes the Head Chef came back and stated that he was not fast enough.

On 11 November 2021, the Complainant supplied a sick cert for his absence and sought a response to the email he sent on 9 November 2021. On 15 November 2021 the Complainant was issued with a response from the Executive Head Chef which included the Grievance, Dignity at work and Managing absence policies as well as EAP contact details and Mental Health Champions document.

On 25 November 2021, the HR Advisor emailed the Complainant to ask if he would consider either facilitated conversation or mediation as part of the informal grievance process. On 26 November 2021, the Complainant confirmed that he wished to take part in the mediation process. On 24 December 2021, the HR Advisor emailed the Complainant to inform him that the appointed mediator would be in contact in due course to arrange the mediation. The mediation process was passed on to the site but was never progressed.

On 29 April 2022, the Complainant submitted a holiday request form for a period of 5 months from 14 May 2022 until 14 October 2022.  The Executive Head Chef sought guidance from HR and on 5 May 2022 issued a reply to Complainant outlining that his annual leave entitlement did not cover the whole length of absence he requested but that if he was planning to take parental leave, he should submit a parental leave request. The Complainant submitted a request of 16 consecutive weeks of leave from 25 June 2022. The Complainant commenced his annual leave on 21st May and following that, namely in the week beginning 9th July, he started a period of his parental leave. His return date to workplace was set as 15 October 2022.

As the Complainant was due to return from leave on 15 October 2022, the new Head Chef sent him a text message to confirm his return-to-work date but did not receive any response. On 14 October 2022, the Complainant sent an email to the HR Advisor outlining his complaint against the organisation. In this email, he asserted that he believed his removal from the kitchen roster on 6 June 2022, while he was on annual leave, amounted to the termination of his employment contract. On the same day, the Complainant’s solicitor sent a data access request to the HR Advisor along with a copy of the WRC complaint form.

On 27 October 2022, the Respondent issued a reply to the Complainant and stated that he was contacted on 10th October 2022 to confirm his return-to-work date and yet on 14th October he issued a letter in which he claims his employment was terminated due to removal from the roster. • They explained that an employee who is on extended leave remains on the roster, however their name is hidden using Excel’s ‘hidden function’ for the printing of roster purposes. They further explained that that he was still considered an employee of the company, that his absence from 16 October 2022 was deemed an unauthorised absence and that he should contact them no later than 5 pm on Friday 4 November 2022 to confirm if he was returning to work and if not to confirm if he is seeking to resign.

As the Complainant failed to reply to this correspondence and did not subsequently engage with the Respondent, they invoked their disciplinary procedure and ultimately terminated his employment on 9 February 2023.

CA-00053275-001:

Section 3 of the Act imposes an obligation on employers to provide their employees with a written statement of terms and conditions relating to their employment within two months of commencing employment. 

Specifically, section 3 of the Act provides:

3.— (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Findings

This is a complaint pursuant to the Terms of Employment (Information) Act regarding the section 3 requirement to provide an employee with a statement of the terms of their employment.

As the Complainant stated and the Respondent accepted that the Complainant had not been provided with a written statement of his terms and conditions of employment, I find that this complaint is well founded.

CA-00053275-002:

This complaint was withdrawn.

CA-00053275-003:

The Law

This is a claim of unfair dismissal pursuant to the Unfair Dismissals Act 1977.

Section 1 of the act states that:

“dismissal”, in relation to an employee, means—

(a)    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

Findings

The Complainant stated that he believed he was dismissed on 6 June 2022 when he was informed by colleagues that his name was no longer on the roster. This was disputed by the Respondent who stated that he was not dismissed until 9 February 2023, following the conclusion of a disciplinary process which was invoked because of his failure to attend work. As the complaint was referred to the WRC on 14 October 2022 however, I can only consider whether the Complainant was dismissed on 6 June 2022, as he asserted.

In making a decision in respect of this matter, I note in the first instance that the Complainant’s belief that he was dismissed arose because of conversations with colleagues who informed him that his name had been removed from the Respondent’s Microsoft Excel roster which is displayed within the premises for all employees to see. He also stated that his exclusion from the roster had been instigated by the new Executive Head Chef, with whom he previously had difficulties in his capacity as Head Chef. When asked during the hearing why he had not contacted the Human Resources department to clarify his employment status, the Complainant stated that he had lost all faith in them. This was due to their mishandling of records related to an incident with the Executive Head Chef in 2019 and their failure to progress the mediation process that had been promised to him in December 2021. He also highlighted that the Respondent had failed to contact him prior to his return-to-work date of 14 October 2022 and disputed that he had received a Whatsapp message that the Respondent stated had been sent to him on 10 October 2022.

In deciding whether the removal of the Complainant from the roster amounted to a dismissal, I noted the Respondent's argument that the Complainant's name still appeared on the Microsoft Excel sheet used for roster management but that it was hidden from public view due to his absence for a five-month period. This absence was a combination of parental and annual leave, from May 14, 2022, to October 14, 2022. Additionally, I noted the Respondent's denial of any failure to contact the Complainant before his scheduled return to work date. Specifically, the Executive Head chef asserted that he had instructed his Head Chef to contact the Complainant on October 10 and provided a copy of the purported Whatsapp message as evidence.

While the Whatsapp message itself is of limited evidential value given the failure of the Head Chef who allegedly sent the message to give evidence at the hearing, I cannot understand, notwithstanding the reasons outlined above, why the Complainant did not contact the Respondent between 6 June 2022, the date he believed he was dismissed as a result of his removal from the roster, and 14 October 2022, the date he was due to return from his period of extended leave, to clarify his employment status. While I recognise that the Complainant had difficulties with the Executive Chef and acknowledge significant deficiencies in how the Human Resources Advisor handled his grievance in 2021, I cannot accept that a reasonable employee would conclude that he was dismissed from his employment of almost 22 years because he heard from an unnamed colleague that his name was removed from a work roster when he was on authorised leave for an extended period of time.

I further note that instead of contacting the Respondent in June 2022 to establish if he had in fact been dismissed, the Complainant decided to write a lengthy letter on 14 October 2022 outlining his difficulties and explaining why he had considered his employment to be terminated. Crucially and inexplicably, he did not even wait a day for a reply from the Respondent before lodging the complaint for unfair dismissal to the WRC on the same day, 14 October 2022.

Considering the foregoing, I find both that the Complainant was not dismissed on 6 June 2022 and that his dismissal occurred on 9 February 2023. As this was after the date on which the complaint was submitted to the WRC, I find that I do not have jurisdiction to hear the matter.  

CA-00053275-001: I find that this complaint is well founded as set out above. In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks remuneration, namely €3,074.92.

CA-00053275-002: This complaint was withdrawn.

CA-00053275-003: I find that I do not have jurisdiction to hear this complaint for the reasons set out above.