Worker

Employer

Anonymised Parties

Waiter  

Restaurant Owner

Representatives

  Self –represented.

 Peninsula

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00061381-001

03/02/2024

The worker contends that he was unfairly dismissed by the employer. He has less than 12 months’ service.

He was employed as a waiter from the 19/9/23 up until 27/1/24.

He earned the minimum wage of €12.70 an hour in January 2024 and he worked 33-37 hours a week.

He submitted his complaint to the WRC on 3/2/24.

The employer dismissed the worker on 27/1/24 at 9.30pm.

His shift was a 12-hour shift, 11.30 am – 11.30.pm.  The worker asked to take a break. The new General Manager told him that henceforth, the breaks would have to be taken at the commencement of the 12-hour shift, which would leave the complainant without a break for the remaining 11 hours of his 12-hour shift. He objected to this, requesting that breaks should be spread out over the 12-hour shift and in accordance with his statutory rights. He told his manager that he needed a break between 12.30 – 11.30 pm. His manager told him to go home and not to return to the restaurant. He left at that point.

The owner telephoned the worker the next day, the 28/1/24, and asked him to come in and resolve the matter. The owner told him that if he intended to resign, written notice was required.

The worker stated that he would not provide written notice as he believed that he had been fired.

Up until that date he had never experienced any difficulties in his employment. He passed his probationary period after 3 months.

The owner rang him frequently asking him to give notice.

No procedure was used to fire him.

The employer sent him 4- 5 emails over a 4-week period stating that unless he attended for work, they would have to dismiss him.

They asked him to return his uniform on 28/1/24.

He asks that a recommendation issues in his favour.

The respondent advised in advance that they would not attend the scheduled hearing and gave no reason for same. Nor did they furnish any submission.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the worker.

The employer declined to participate or make any submission.

The worker’s own submissions raise doubt as to whether he was dismissed.

No letter of dismissal issued to him. His own statement was that on the day after the General Manager told him to go home and not return, the owner asked him to come in to resolve the situation. When he declined to do so, the employer asked him for his notice.

The owner tried to rescue the situation by asking the worker to return.

His submission recounted that the owner/ employer emailed him on four to five occasions over a 4 week period, advising him that if he did not attend at the work place, the employer would dismiss him for non -attendance. That demonstrates that the door was open for him to return- albeit in satisfactory circumstances.

His uncontested submission is that he was treated unfairly for having asserted a statutory right to a break after 6 hours worked and was told to go home and not return. The uncontested submission is that the employer failed to acknowledge his right to take breaks in accordance with the provisions of the Organisation of Working Time Act,1997, punished him for asserting such rights, and failed to provide him with the grievance procedure through which clarity about his entitlements and a resolution about his employment status could have emerged.

As a result of these shortcomings, and in all of the circumstances obtaining, I recommend that the employer pay the employee the sum of €1000 in settlement of this dispute.

Failure to address worker’s complaints.