ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046799
Parties:
| Complainant | Respondent |
Parties | Elisson Silva Dos Santos | Mercantile Entertainment Group |
Representatives | Self | JRK Business Support & Employee Advocacy Services |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00057574-001 | 06/07/2023 |
Date of Adjudication Hearing: 17/01/2024
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, as amended,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text and the Respondent’s employees are referred to by their job titles.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
I have taken the time to carefully review all the evidence both written and oral. Much of the evidence was in dispute between the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
The Complainant was self-represented.
The Respondent was represented by John Keenan, JRK Business Support & Employee Advocacy Services. The following attended on behalf of the Respondent: Patrick Burke, Director; Holly Kiely, Hr Manager; and Darragh Flynn, General Manager, The George.
Background:
The Complainant asserts that he was unfairly dismissed by the Respondent. The Respondent rejects the complaint and contends that the Complainant was not dismissed. |
Summary of Complainant’s Case:
Direct evidence of the Complainant The Complainant said that he had been hired specifically to work as security in The George. The Complainant worked for 16 months at The George, which is part of the Mercantile Entertainment Group. He always worked at The George and did at least 40 hours per week. Prior to 28 June 2023, there had never been any issues about his performance. On 28 June 2023, an incident occurred while the Complainant was at work. He noticed a customer who appeared to be very drunk. The Complainant explained that in situations such as this, he was trained to escort the customer from the premises. The Complainant asked the customer to leave the venue. He asked her to follow him to the exit. Initially, she followed him but then she changed direction. So, he took her by the arm and showed her the way to the exit. The Complainant contends that the customer was very aggressive towards him; she pushed him and slapped him in the face. The Complainant also alleges that the customer tried to kick him. The Complainant contends that when he took the customer by the arm to go downstairs to exit the venue, she lay down on the stairs. He was holding her arm because he wanted to keep her safe and avoid her falling down the stairs. The Duty Manager appeared and helped the customer to her feet. The Complainant contends that the customer continued to act aggressively. The Complainant contends that he asked the Duty Manager twice if the customer could be removed from the premises in accordance with their procedures. The Complainant asserts that the Duty Manager shouted at him in front of the customer and colleagues and told him to leave the situation. The Complainant submits that he felt sad, belittled, and humiliated so he decided to leave. He turned off his radio and body camera and went home. The next day, 29 June 2023, he was told not to go to work. Instead, he was asked to go to a meeting on Friday 30 June 2023 with the General Manager. The Complainant alleges that, at that meeting, the General Manager said that he was violent and told him that he was fired. The Complainant contends that the General Manager did not pay him notice or give him a written warning. The Complainant asked the General Manager to show him the CCTV of the incident. The General Manager agreed and they looked at the CCTV together. The Complainant contends that the CCTV showed that he had not done anything wrong, but he was still fired. He asked the General Manager if he should sign something, but he was told that there was no need to do so. On Sunday 2 July 2023, the Complainant sent an email to the HR Manager of the Mercantile Group asking about his resignation, notice period, holidays, and last working week. The HR Manager responded to say that she had talked to the General Manager of The George who informed her that he had not fired the Complainant. In the same email, the Complainant was issued with a written warning letter which was issued four days after the General Manager had fired him. The Complainant contends the no one from the Respondent company got in touch to ask him what had really happened on 28 June 2023. The Complainant submits that contrary to what was stated in the written warning, he did not push the customer down the stairs, and this can be proven by the CCTV. The Complainant submits that the warning letter did not mention that the customer gave him a slap on the face, that the customer pushed him, and the manager shouted at him to leave. The Complainant submits that in the last meeting with the HR Manager, he asked her to carry out an investigation to prove that what he was saying was true. He had been fired and he did not receive notice. The Complainant contends that despite promising to conduct an investigation, the HR Manager did not do so. After one week he was put on the security roster for other venues for only 14 hours per week. The Complainant told the security manager that he would not work for 14 hours in other venues because he was hired to work 40 hours per week in The George. The Complainant said that the security manager kept saying that he had not been fired. The Complainant submits that he does not understand why an investigation was not carried out; why he was asked to work in another venue even though he had been hired to work at The George as agreed prior to starting the job; and why his shifts were reduced to 13 hours per week even though, for 16 months prior to the incident on 28 June 2023, he had always worked in The George for around 40 hours per week. The Complainant wonders if he was treated differently because he was not Irish. Cross-examination of the Complainant by Mr Keenan, Respondent’s representative Mr Keenan drew the Complainants’ attention to his contract of employment which he had signed on 16 March 2022. In that contract his place of work was stated The George. It was also stated that he would be “required to carry out your duties across the companies’ premises as determined by the needs of the business. You may be required to travel and work at other locations in carrying out your responsibilities”. The Complainant said that he understood that, at the time he was hired, he had been told that he would be working 40 hours per week at The George. He had always worked at The George. The Complainant said that on 28 June 2023, when the incident which led to this referral occurred, the Duty Manager screamed at him to get out. He then left work. The Complainant said that it was common practice to leave when incidents happen. The Complainant confirmed that he was not told to go home. The Complainant was then asked about the meeting with the General Manager on 30 June 2023. The Complainant contends that at that meeting the General Manager told him that he was fired. Mr Keenan asked the Complainant if the General Manager asked him to speak to the Security Manager. The Complainant said that he had not but that he had contacted the Security Manager himself to let him know that he had been fired from The George and asking if there was other work for him. The Complainant confirmed that the Security Manager told him that he was working for the Mercantile Group. Mr Keenan put it to the Complainant that he had been offered other work by the Security Manager but that he refused. The Complainant said that he did not accept the offer of other work because the Security Manager said that he worked for the Mercantile Group when he worked for The George. The Complainant added that he would not accept other work because the Security Manager started calling him a liar and he had been fired. The Complainant said that he had not seen the written warning which was issued on 4 July 2023 before it was issued. He was surprised that the HR Manager issued him with a written warning but did not talk to him about the incident on 28 June 2023. The HR Manage never asked him what had happened. Mr Keenan put it to the Complainant that the HR Manager told him that there was work available for him. The Complainant responded that that was before he was told that he was fired. Mr Keenan put it to the Complainant that work was made available to him and that he could have taken it. The Complainant responded that he could not be confident to work for a company that fired him but said that he was still working. Mr Keenan asked the Complainant if he was issued with a roster after 30 June 2023. The Complainant replied that he was rostered for 14/15 hours but asked how he could work at a place from which he was fired. |
Summary of Respondent’s Case:
The Complainant was employed by the Respondent as a Security Operative, from 2 March 2022 until 11 August 2023, when his employment was formally terminated. The Respondent submits that it was compelled to formally terminate the Complainant’s employment as he had failed to attend for work in the preceding 5 weeks, despite being rostered to do so. In effect, he abandoned his employment. The background to the termination of the Complainant’s employment relates to a specific incident which occurred at one of the Respondent’s venues in Dublin, The George Night Club. On Wednesday, 28 June 2023 an incident occurred when the Complainant asked a patron to leave the premises. The Respondent contends that it is clear from an ensuing investigation, involving a review of CCTV footage, that the Complainant used unnecessary and inappropriate force to compel the patron to leave. Following this incident, the Complainant, who was spoken to by the Duty Manager on the night, left the premises immediately afterwards without finishing his shift and without authorisation or explanation. On Friday 30 June 2023, the General Manager of The George, met with the Complainant to address his behaviour. He pointed out that the behaviour displayed by the Complainant towards the patron concerned was unacceptable, as was the fact that the Complainant left the venue without seeking permission to end his shift early, and without explanation to the manager on duty. At the end of the meeting the Complainant agreed that in future he would not escalate his behaviour when dealing with patrons to the level which had occurred on 28 June 2023. On 4 July 2023, acting on the reported outcome of the meeting of 30 June 2023, the HR Manager issued a formal warning to the Complainant by email. In an immediate replying email, the Complainant rejected the HR Manager’s correspondence and claimed that the patron had assaulted him, and the Duty Manager had acted aggressively towards him on the night. In an email exchange on the same date, the Complainant insisted that he had been fired on 30 June 2023 and asked the HR Manager how much he would be paid for accrued annual leave and notice. The HR Manager repeated that the Complainant had not been fired and informed him that she had discussed the contents of his email with the General Manager who had confirmed that the Complainant remained in employment as security and indicated that the Security Manager would be in touch with regards to his roster. The HR Manager attached the formal warning to the email to the Complainant. In the context of a follow-up investigation, on 6 July 2023, the HR Manager, accompanied by a HR colleague, met with the Complainant. At this meeting, the Complainant stated that the General Manager had fired him when he met with him on 30 June 2023. The Respondent contends that the Complainant displayed quite a bit of agitation at this meeting. The HR Manager responded by advising the Complainant that he had not been fired, and that he would be rostered to work at other Group venues. The Respondent contends that the Complainant agreed that he would talk to the Respondent’s Group Security Manager. The Complainant subsequently exchanged WhatsApp messages with the Security Manager. In an exchange on 5 July 2023, the day before his meeting with the HR Manager, the Security Manager advised the Complainant that he would be rostered to work at Group venues other than The George. The Complainant rejected work elsewhere and repeated that he had been fired. In a subsequent exchange on 14 July 2023, the Complainant advised the Security Manager that he would not be available to work on 14 or 15 July 2023. The Complainant explained that he had been contracted to work at The George and that he had been fired on 30 June 2023. In response, the Security Manager assured him that he had not been fired and that he would be rostered to work in other Group venues. The Complainant continued to assert that he had been fired. The Security Manager and the Complainant had similar exchanges on 20 and 21 July 2023. On 24 July 2023, the HR Manager issued the Complainant with a second formal warning due to his failure to attend for work as rostered in the preceding two weeks and reminded him that in a letter dated 18 July 2023, she had urged him to attend for work. The Respondent submits that the Complainant had been paid for attendance for the roster week ended 9 July 2023. However, this was in error as the Complainant confirmed that he had not attended during that week. The Complainant was included in security rosters up until week ended 20 August 2023. However, he failed to attend for any of his rostered duties. It was on foot of this failure that the HR Manager was compelled to formally terminate the Complainant’s employment, and did so, by letter dated 11 August 2023. In this correspondence, the HR Manager advised the Complainant that the termination of his employment could be appealed. The Complainant did not appeal his dismissal. By email dated 20 December 2023, the Complainant repeated the allegation that he had been fired, made a complaint that the Respondent had demonstrated xenophobia, and sought a compensation payment of €23,440.
Direct evidence of Darragh Flynn, General Manager, The George The General Manager said that he got a report from the Duty Manager on 28 June 2023 that the Complainant had slapped and pushed a customer on the stairs. He invited the Complainant to meet with him on 30 June 2023. He met the Complainant in The George. The General Manager contends that the Complainant said that either he was working that night, or he was fired. The General Manager responded that it doesn’t work like that and that they needed to discuss his behaviour on 28 June 2023. The General Manager had three concerns about the Complainant’s behaviour: (1) he was over-aggressive; (2) he did not follow the direction of management and (3) he walked out in the middle of the shift without telling anyone. The General Manager said that the Complainant did not accept that he had done anything wrong. He did not show any remorse. The General Manager said that he told the Complainant that he had concerns that if the Complainant wasn’t going to follow directions from management and hurt customers, he couldn’t continue to work in The George. The General Manager said that he told the Complainant that he would contact the Security Manager about alternative work for the Complainant. The Complainant responded that he would do it himself. The General Manager confirmed that after 30 June 2023, the Complainant had been given a roster that included work in The George.
Cross-examination of the General Manager by the Complainant In response to a query from the Complainant about previous incidents, the General Manager said that he had spoken to the Complainant on a number of previous occasions to ask him to be less aggressive and that there would have been incidents reports about these. The General Manager again emphasised that he didn’t say that the Complainant was fired.
Questions from the Complainant to Ms Kiely, HR Manager Even though she had not been put into evidence, the HR Manager acceded to a request from the Complainant to put a number of questions to her. In response to a question from the Complainant, the HR Manager explained that the warning letter was issued on foot of the meeting between the Complainant and the General Manager on 30 June 2023 where the General Manager outlined his concerns about the Complainant’s behaviour and explained why it was unacceptable.
Conclusion It is the Respondent’s position that the Complainant was not dismissed and that this was confirmed to him by the General Manager, the HR Manager, and the Security Manager. The Complainant in effect abandoned his employment. As a result, the Respondent was compelled to formally terminate his contract of employment. The Respondent believes that there is evidence that the Complainant obtained alternative employment, and indeed he himself declared in an email dated 5 July 2023 to the HR Manager, that; “I was fired last Friday by Darragh and because of it I found a new job….” |
Findings and Conclusions:
The Law Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”: “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, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”
Was the Complainant dismissed by the Respondent? As the fact of dismissal is in dispute between the parties, the first matter for me to address is whether the Complainant was dismissed by the Respondent. A key area of conflict in this case relates to matters that transpired during the course of a meeting between the Complainant and the General Manager that took place on Friday 30 June 2023. The Complainant contends that he was dismissed at that meeting; the Respondent, however, contends that the Complainant was informed that he would continue in employment albeit at a different location. I note the General Manager met with the Complainant on Friday 30 June 2023. A written warning, a copy of which was submitted by both parties, was issued to the Complainant on Tuesday 4 July 2023 only four days later. In that warning letter, the HR Manager wrote as follows: “It was agreed that going forward your interaction with patrons would not escalate to the above circumstances and your regard for customer safety and service will align with company standards at all times and conduct such as that stated above or akin to same will not be repeated. Please note that failure to adhere to the above stated behaviours will result in further warning from management, to be reviewed within 6 months from issue of this letter.” Given that the HR Manager issued the Complainant with a warning letter and not a letter of dismissal and that the wording of the warning letter as shown above was indicative of an ongoing relationship rather than a relationship that has been terminated, I find that this evidence supports the Respondent’s position that the Complainant was not dismissed by the General Manager on 30 June 2023. I further note that both parties submitted a copy of an email from the HR Manager to the Complainant dated 4 July 2023 in which she wrote: “Evening Elisson Many thanks for your email. I have discussed the contents with Darragh who has confirmed that you remain in employment as security and [the Security Manager] will be in touch with regards to your roster. Darragh has communicated a number of issues which he discussed with you on Friday 30th June last and I attached letter in relation to same for your attention. Kind regards, Holly”
Evidence submitted by the Complainant The Complainant submitted a copy of a text message to him from the Security Manager dated 4 July 2023 in which the Security Manager wrote: … I’ll find you hours in one of our other venues.” The Complainant also submitted a copy of a text message to him from Security Manager dated 5 July 2023 in which the Security Manager wrote: “You didn’t get fired. You just no longer work in George. So we are looking for hours for you in different venues.” In addition, the Complainant submitted a copy of an email to him from the HR Manager dated 5 July 2023, in which she wrote: “… I cannot process you as a leaver without your confirmation as your job remains available.” I also note that the Complainant submitted copies of rosters where he was given shifts in another one of the Respondent’s venues, No Lita, between 3 July 2023 and 23 July 2023.
Evidence submitted by the Respondent The Respondent submitted a copy of the following text exchanges between the Complainant and the Security Manager dated 5 July, 14 July and 20 July 2023: 5 July 2023 Complainant: “… I’m not fired why am I not working?” Security Manager: “No you don’t work in George anymore. You have been transferred out of the George to work in the other venues across the company.” 14 July 2023 Security Manager: “What’s the reason why you can’t come to work?” Complainant: “First because I was contracted to work at the George. Second Darragh fired me on 30th June 2023.” Security Manager: “You work for mercantile group. You were never fired.” 20 July 2023 Security Manager: “What is the reason for not working this Friday and Saturday?” Complainant: “First because I was contracted to work at the George. Second Darragh fired me on 30th of June 2023.” Security Manager: “As previously discussed. This is not true. You were not fired from the Mercantile Group. HR will be in touch with you soon.”
Findings From the totality of evidence that was adduced at the hearing, it appears to me that at no time after 28 June 2023, the date of the incident which led to this referral, did the Respondent, in its dealings with the Complainant, act like an employer who had dismissed an employee. Accordingly, on the balance of probabilities, I find that the Complainant was not dismissed by the Respondent on 30 June 2023 as he has alleged. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that this complaint is not well founded. |
Dated: 13th February 2024
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Doubt as to dismissal |