ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050926
Parties:
| Complainant | Respondent |
Parties | Ronald Bujdei | Rathcreedon Limited, trading as Sushi King |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives |
| Audrey Gargan, Managing Director. |
Complaints:
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-00062355-001 | 23/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00062355-002 | 23/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00062355-004 | 23/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00062355-005 | 23/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00063119-001 | 26/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063119-002 | 26/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063119-003 | 26/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00063119-004 | 26/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063119-005 | 26/04/2024 |
Date of Adjudication Hearing: 05/09/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a number of matters for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms.
Particular to the issues raised by the Complainant is the provision that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of a change in any of the particulars of the statement as provided by the Employer.
The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.
Section 5 reads:
5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—
(a) the day on which the change takes effect, or
(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
In addition to the above, the Complainant herein has referred one complaints of contraventions of the Organisation of Working Time Act 1997 and in particular to a contravention under Section 14 of the act which provides for compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated including the payment of an allowance, an increased rate of pay or paid time in lieu. The Complainant has made a second complaint concerning hours of work. The Relevant section reads:
15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
(a) 4 months, or
(b) 6 months—
(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or
(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,
or
(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.
(2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).
(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.
(4) A reference period shall not include—
(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),
F10[(aa) any period during which the employee was absent from work while on parental leave, force majeure leave F11[, leave for medical care purposes, domestic violence leave or an approved flexible working arrangement within the meaning of the Parental Leave Act 1998] or carer’s leave within the meaning of the Carer’s Leave Act, 2001,]
(b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or
(c) any sick leave taken by the employee concerned.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
In addition to the foregoing and in accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and opened up in the course of the hearing).
An Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates, or such other date as may be set out in Section 41(6) of the WRC Act of 2015. In limited circumstances, complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause.
Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated 23rd of March 2024) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably when he was being told that he could not expect payment for hours he says he worked in advance of his scheduled time to work and where he believes others were being paid. The claim is being made on the grounds of his Civil Status.
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…discrimination shall be taken to occur where… a person is treated less favourably than another person is, has been or would be treated.
In a comparable situation on any of the grounds specified in subsection (2) (the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(b) that they are of different F15[civil status] (in this Act referred to as “the F15[civil status] ground”),
One month after the initial complaint form issued (on March 23rd 2024) a second complaint form issued on the 26th of April 2024 and was brought to the WRC. This second complaint form highlighted a number of issues under the same legislation and brought a new claim of Unfair Dismissal.
The last issue raised has been brought in accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where such a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 26th of April 2024) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
7.1 (b) (ii) states that
“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”,
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. It should also be noted that the Complainant and Respondent witnesses were all agreeable to giving a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence. The Specific Details of the Disputes are outlined across two separate Workplace Relations Complaint Forms which were received by the WRC on the 23rd of March 2024 and the 26th of April 2024. The Complaint forms were linked and have come before me as one file - ADJ File 50926. I am mindful of the different cognisable periods which operate as a result of the two different complaint dates. There is an additional ADJ File – ADJ File 51705 – which was issued at the later date of 7th of May 2024. This is a standalone file comprising one complaint under the Payment of Wages Act. This File was listed alongside the ADJ File 50926 and evidence was heard in connection with all the maters raised by the Complainant at the one hearing. A decision in ADJ File 50926 is dealt with separately. At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment 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 that a “…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…”.
|
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant made an Affirmation to tell the truth. The Complainant did not provide me with any documentation to corroborate or further expand on his oral evidence. The Complainant said that all the paperwork was available on his telephone, but he had not printed hard copies of anything for me to look at and consider. I did look at some emails he brought up on his small phone screen which in turn had to be shared with the Respondent. This was a most unsatisfactory process. The Complainant additionally relied on the submissions outlined in the Workplace Relations Complaint Form. To my mind the approach taken was not considered or helpful and it was difficult to understand why the Complainant was not better prepared to make his case. The oral evidence adduced by the complainant was challenged as appropriate by the Respondent witness. The Complainant had worked with the Respondent company since 2018. He was ultimately dismissed for insubordination and is claiming this dismissal was unfair. The Complainant has additionally raised issues around working on Sundays, working longer hours than allowed by Statute, the allocation of meals and the non-payment of Statutory sick pay. There is also a complaint raised under the Employment Equality legislation. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. I should note that following the hearing the Complainant sought to address matters by way of email. This communication was unsolicited and unexpected. The content of these read: Could you please inform the officer that the Google timeline tends to start earlier than my actual work time? I forgot to mention that I was waiting in the back of the kitchen for 15-25 minutes. My actual start time was between 2:35 and 3:00 PM. I also forgot the time to change for work uniform is around 5 min. Please just tell her to check my timesheet to see what time I started. And: Also, please let the officer knows that I send Audrey message stating that I don't want to work more then 40 hours per week. This happened like 9 months from this time. And the officer told me that this never happened before (me complaining about why I worked more than 40 hours per week). The officer thinks that if I worked for 5 years between 45-68 hours. I can continue doing that. These emails were sent to the Respondent for comment. |
Summary of Respondent’s Case:
The Respondent entity was represented by the company director/owner A. Gargan. The company is involved in the Retail & Catering production of high-quality Sushi, Japanese & Asian Food. The Respondent provided me with written submissions and supporting documents in advance of the hearing. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent witness in the course of making her case and in fact the Complainant had to rely on the documents himself in support of his case. All evidence was heard following an Affirmation. The Respondent witness was questioned by the Complainant as appropriate. The Respondent rejects that there has been an Unfair Dismissal and does not accept any contravention of Employment Rights as protected by statute. In particular the Respondent refutes the allegation that it has acted so as to discriminate against the Complainant and the Complainant must be put on full proof of same. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced by both parties herein. The Complainant commenced his employment as a Kitchen Porter in and around the 11th of April 2018. By all accounts the Complainant initially worked well within the Respondent enterprise. As I understand it, the Complainant worked in the production end of the company working in a food prep environment preparing sushi produce for retail operations as well as for restaurants offering a sushi menu. The Complainant upskilled in the course of his employment and ultimately worked directly preparing the food. I have had an opportunity to study the Contract of Employment which was provided by the Respondent and which the Complainant agreed was operative up to the time of his termination of employment. The Complainant worked full time in accordance with a Roster which scheduled him for 40 hours in a 5 x 8 hour shift weekly arrangement. As I understand it the Complainant clocked in and clocked out at the start and finish of each shift and Ms. G herself would go through the clocked times for the purpose of calculating payment which was at a daily rate. The Complainant started at a rate of €9.55 per hour working up to €16.00 hours in 2024. In the course of evidence, the Respondent conceded that she rounded up and down to the nearest 5 minutes. I have been provided with a weekly breakdown of the hours actually worked by the Complainant going back as far as 2021 and I note that the complainant very often worked in excess of the 40 hours scheduled but appears to have been paid a flat rate no matter the number of hours worked. The Contract of Employment allows for this arrangement. The Respondent has led evidence to the effect that the Complainant was always available to work as many hours as he could. There was, it seems, an ambition on the Complainant’s part to obtain a mortgage. I note that very occasionally the Complainant worked well in excess of the 48 hours allowed by Statute. The Respondent stated that over the last couple of months of 2023 the Complainant had asked for as many extra hours as he could get. He wanted to show an increased rate of earning as part of a mortgage or other loan application process. It suited the Respondent to give the Complainant an extra hour or two each day so that he would start before his nominated start time of 3pm. I understand that the arrangement suited the Respondent as part of it’s preparation for an end of year Hygiene Audit. The Complainant was expected to deep clean over and above normal cleaning expectations. The arrangement continued into January of 2024. It seems tensions arose between the Complainant and Ms. G in mid-February 2024. It seems the Complainant had suggested that he should be eligible for a promotion to Manager in and around this time. This idea was pushed back on by Ms G. As part of this same conversation Ms G drew the Complainant to the following issue by way of email on the 15th of February: “Following on from our conversation earlier this afternoon. You clocked into work last Monday at 10.35am instead of the correct 3pm. You said that someone was late but were unable to tell me who asked you to come in early. We have spoken about this before. It is not acceptable that you come and go at your preferred times. Please take this as official written warning regarding adhering to roster. Your start time is 3pm like everybody else. Should there be any changes, be they due to personal of work-related reasons, these changes must be agreed with your manager, Shah or myself.” Ms G said in evidence that she had by now identified that the Complainant was regularly coming to work well in advance of the rostered hour of 3pm for which he was being asked to work. The Complainant was, in effect, clocking up unnecessary hours when he was not really required and for hours which she was liable to pay for. The Respondent witness explained that allocating more hours to the Complainant meant shaving hours off other members of staff which left them at a financial loss which was wholly unfair and led to a break down in any sense of team effort. Ms. G says she was forced to communicate with the Complainant again on the 20th of February stating: “As per your last mail, you again ignored a clear management instruction which was given to you, on Thursday, the 15th of February you started work at 11.24 am. You were told clearly to start work at 3pm. The additional hours that you worked were not agreed with me in advance. For this reason, you will not be paid for the time between 11:24 and 3pm as you were told to come in at 3pm. As you have ignored a clear instruction from management, we will consider next steps.” Ms. G has given evidence to the effect that she did, in fact, pay the Complainant for the extra hours he insisted (unbidden) to work up to the end of February but stopped paying for them from the start of March 2024. It was in these circumstances that the Complainant issued a workplace relations complaint form on the 23rd of March 2024. The Complaints lodged at this time were: Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00062355-001 - Relating to compensation for Sunday working time. I understand that the Complainant’s case is that there is an affirmative legal obligation imposed on the Respondent under Section 14 of the Organisation of Working Time Act of 1997 which states:- 14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely— (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs. I am aware of the line of authorities on this issue and which provide that the payment of a compensation for any requirement to work on a Sunday (“a Sunday premium”) should be discernible and identifiable and should not be somehow inferred from the overall rate of pay. I have considered the cases of Ballinard Transport Limited -v- Zolton Gonczi DWT 1368 May 2013 and Viking SecurityLimited -v- Tomas Valent DWT 1489 October 2014 in this regard. In the latter case the Court stated that “In practise the court can only be satisfied that an employee has obtained his or her entitlement under s.14 of the Act where the element of compensation for the obligation to work Sundays is clearly discernible from the Contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect the requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the Contract of Employment is concluded either in the Contract itself or in the course of negotiations.” The Contract of Employment herein states that the rate of pay is €9.55 per hour which includes a premium for working Sundays. However, I note that the Minimum wage in 2018 was €9.55 so in fact there was no premium or compensation built into the hourly rate being paid in 2018. I find I have no reason to believe that a Sunday compensation was built into salary increases between 2018 and the end of the Employment. I understand that the Complainant worked every Sunday and must therefore conclude that in the six-month period prior to the lodging of this complaint the Complainant was not compensated for having to work Sundays. The Complainant succeeds in this complaint. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00062355-002 – Relating to the non-notification of a change in his written terms of employment. The Complainant is adamant that the Contractual entitlement to avail of one meal free of charge during each working day was withdrawn from him and he had to purchase food in the course of his 8-hour shift. I found the Complainant’s evidence was very unclear in this regard. He appeared to accept that food was available in the kitchen wherein he worked but that a meal was not being prepared for him. The Respondent stated that Sushi King has always offered a meal to staff. Staff help themselves. Her evidence was: We have fish, chicken, rice, noodles and lots of vegetables. Each person looks after themselves. Often one person might volunteer to make a pot of curry or stir fry to share but it is not the responsibility of anyone at Sushi King to cook other people’s meals for them. I find, on balance, that the Respondent assertion that food is readily available to all staff who are all welcome to enjoy a meal at the expense of the Employer to be believable. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00062355-004 – Relating to his being singled out for discriminatory treatment by the actions taken by the Employer not to pay him for the hours he worked. Ultimately, I do not accept that the Complainant has made out a Prima Facie case of discrimination herein. The Complainant appeared to be trying to address the shortfall in payment for those hours worked and for which his Employer did not feel bound to pay. I have set out the circumstances wherein this happened above. There appears to be a case that for up to three weeks in March the Complainant was coming in before his start time of 3pm and the Respondent did not pay him for these hours as she had repeatedly told him he was not needed to come in early. On balance I believe this complaint is misconceived as a discriminatory issue. Normally I would consider amending the complaint to one under the Payment of Wages Act but in the within proceedings I do not need to take this step as the Complainant has brought a separate Payment of Wages claim under ADJ 51705. In these circumstances, I can consider the allegation set out in this narrative (which amounts to an allegation of unlawful deduction) under Payment of Wages complaint set out in ADJ File 51705. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00062355-005 - Relating to the non-notification of a change in his written terms of employment In this instance, the Complainant was unhappy with the late notification of his Statutory entitlement to Sick Leave Pay. The Sick Leave Act 2022 provides for a statutory sick pay scheme for all employees. In 2023 there was an entitlement to 3 days paid sick leave. The Complainant says that he was only notified of the existence of this scheme in March of 2024 when his Employer directly emailed all employees of the operation of the Statute. The Complainant states he should have had written notification in 2023. On balance I find I agree with the Complainant that the Employer was tardy in providing the information. However, the Complainant has not been able to demonstrate that this affected him or any entitlement he might have had. In any event when the Complainant issued this workplace complaint form on 23rd of March 2024 he had been notified of the Statutory change. The point was therefore moot. In any event the obligation under Section 5 of the Terms of Employment (Information) Act, 1994 does not extend to a change occurring in provision of statutes and instruments made under statute. As previously noted, the Complainant had originally issued a workplace relations complaint form on the 23rd of March 2024 raising certain issues just outlined. In addition to this, the Complainant had appealed the written warning which the Complainant had received on the 29th of March 2024. It is clear that with increased frustration, Ms. G sought to put an end to the insubordination as she perceived the Complainant’s behaviour to be. On the 22 March 2024, Ms G wrote to the Complainant inviting him to a disciplinary hearing at Sushi King, Sheriff Street on 27 March 2024 at 02.30 pm. The allegation contained within the letter to Mr Bujdei stated, “Alleged insubordination: the particulars of which are that despite numerous reasonable management requests to adhere to the company roster, you have continued to clock in for work before your allocated time daily including 13/3/24 at 14.30 pm.” On 27 March 2024, the Complainant attended the disciplinary hearing at the Company’s office. The Complainant was accompanied to the hearing by witness, Mr A. On 29 March 2024, Ms Gargan emailed Mr Bujdei, attaching the outcome letter of the 27 March 2024 disciplinary hearing. The Complainant was issued with a “first written warning in line with the Company’s Disciplinary Procedure.” As stated within the letter, the Complainant was told he must: • Ensure you abide by the roster, and do not make decisions on your own to work longer hours that have not been authorised. • Not to send me threatening, rude, abusive or unprofessional emails. • To carry out reasonable management instructions as and when requested by myself or the Head Chef There is no doubt that the relationship between the Complainant and Ms G deteriorated and the Complainant demonstrated nothing but contempt for Ms G and the authority that she tried to wield in order that her Sushi kitchen might properly function. Ms. G makes the point that other members of staff were upset and angry. I can accept that the Complainant’s corrosive, toxic and sometimes dangerous behaviour (such as when he threw a box from a height into the middle of the workplace) was worrisome to all staff. The Complainant in his evidence sought to justify his actions but I never got the impression that he had any real insight into his behaviour and he did not shy away from the fact that he was contemptuous of Ms. G. Certainly the email and what’s App communication between the two over this time was not remotely what would be acceptable in any normal workplace. In any event, on 12 April 2024, the Complainant was invited to a further disciplinary hearing on 15 April 2024 at 03.30 pm at the Company’s office. The purpose of the hearing was to consider an allegation of misconduct against the Complainant, with the allegations pertaining to the Complainant’s “gross insubordination,” as set out below: “Despite numerous reasonable management requests and a formal written warning given to you on the 29th of March 2024, to adhere to the company roster, you have continued to clock in for work before your allocated time, namely on the 1st of April 2024. Despite being asked to refrain from sending threatening, disrespectful and unprofessional emails you have continued to do so on the 15th of February 2024 at 00:37 am, 29th of February 2024 at 10:04 am and 10:06 am, the 11th of March 2024 at 17:34 pm & 23:28 pm, the 6th of March at 17:26 pm.” By way of an example of the unfiltered contempt shown to Ms. G I note that on the 12 April 2024 at 04.01 pm, the Complainant responded to the second disciplinary hearing invitation email, writing “Meow.” On 17 April 2024, Ms G issued the Complainant with a letter outlining the outcome of the disciplinary meeting of 15 April 2024, terminating the Complainant’s employment with the Company. On this date, at 10.12 am, the Complainant responded to the email, writing “Meow Meow”. On balance I find that the Dismissal herein was warranted. The complete lack of respect and professionalism displayed by the Complainant as regards the reasonable directions given by his Manager and the disregard he had for the Disciplinary processes inevitably led to his own Dismissal. I should note that the Respondent went to a considerable amount of trouble to ensure that a fair and correct procedure was adopted and even engaged an independent HR company to oversee the Appeals process. The Appeal outcome confirmed the Dismissal as being proportionate and reasonable in all the circumstances. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00062355-001 – The complaint herein is well founded. I require that the Respondent pay to the Complainant the sum of €300.00. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 – CA-00062355-002 - The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00062355-004 – The Complainant has not made out a Prima Facie case of Discrimination and this complaint fails. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00062355-005 - The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00063119-001 - I am satisfied that the Employer has acted reasonably in all the circumstances and the Dismissal herein was not unfair. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00063119-002 - This complaint is a repeat of an earlier one and is not well founded. The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00063119-003 – The complaint herein is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00063119-004 – This complaint repeats an earlier one. The Complainant has not made out a Prima Facie case of Discrimination and this complaint fails. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00063119-005 - This complaint is a repeat of an earlier one and is not well founded.
|
Dated: 04-11-24
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Key Words:
|