Worker

Employer

Anonymised Parties

Bartender

Hospitality Services Provider

Representatives

Self-represented

Andrea Montanelli, 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

IR-SC-00002759

13th June 2024

The Worker contends that he was unfairly dismissed by the Employer.

While not disputing that the Worker was dismissed by the Employer, the Employer asserts that the Worker was dismissed in the heat of the moment but shortly thereafter his dismissal was retracted.  The Employer asserts, therefore, that the Worker is precluded from claiming unfair dismissal.

The Worker submits that on 4 June 2024, he received an abusive email from his Line Manager without any prior warning firing him from his employment. He was not given any chance or opportunity to investigate or rebut any of the allegations his Line Manager made against him, which, he contends, were inflammatory and unfair in nature.

On receipt of the email, the Worker emailed his Line Manager with his responses to the allegations as well as sending the copy of the email thread to the Managing Director.  The Worker did not receive a response within two days, so he sent another email requesting further clarification.

The Worker asserts that he never received any proper reply or clarification from his Line Manger about the allegations that were made against him, other than a response saying that the Line Manager was in touch with the HR Team.  Subsequently, the Managing Director replied to him by email on 7 June 2024 backtracking on the unfair dismissal and claiming the Line Manager had made the decision in the 'heat of the moment' and 'without due process', as well as an apology for the 'inconvenience this may have caused'. The Worker was invited by the Managing Director to attend an in-person meeting.  The Worker refused the invitation as:

·        He did not feel comfortable returning to the premises after the inflammatory allegations and the unfair dismissal.

·        An in-person meeting is more complicated for him due to the language barrier he faces not being a native English speaker.

The Complainant replied accordingly and also raised issues that he had faced during his term of employment with the Managing Director.  The Worker explained that any supposed misconduct which was alleged did not occur during his working hours, and also, that the allegation of physical aggression contained in the Line Manager’s email was untrue.

The Worker asserts that prior to his dismissal, he was never provided with a written or verbal statement about the Employer’s policy on tips.  He also asserts that he did not receive any training about his responsibilities, other than how to operate the till and which drinks were available. The Worker had a lot of responsibilities, and he felt under pressure.

On 11 June 2024, the Employer requested the Worker to follow its grievance procedure.  The Worker did not feel comfortable with the proposed process as the Employer had refused to respond to any of the issues he raised.

The Worker asserts that the Employer made the decision to dismiss him without first speaking to him.  The Worker contends that the Employer only listened to his former colleagues who complained about his behaviour but did not ask him for his version of events.

The Worker does not believe that an employer should dismiss a staff member and then retract the dismissal.  For the Worker, this represents a violation of trust.  As a result of what had occurred, the Worker did not have any trust or faith in the Employer.

The Worker confirmed that he got a new job on 17 June 2024. 

The Worker was employed on 14 February 2024 as a bartender for an initial probationary period of six months.  He was dismissed on 4 June 2024 in the heat of the moment. During the course of his employment, the Worker took one week of annual leave and seven weeks of sick leave so that he actually worked for the Employer for a total of eight weeks. 

The Worker returned from sick leave on 18 May 2024 and told his Line Manager approximately 20 minutes into the shift that he had to leave as he was sick.

Although the Worker had said to his Line Manager that he was sick and had to leave, around 30/40 minutes later his Line Manager spotted him outside walking by the bar with his bike, and sent him a text message asking if he even wanted the job, to which the Worker replied that he had a nervous breakdown as his girlfriend was cheating on him.

The General Manager from the neighbouring bar was in touch with the Line Manager later that day saying that the Worker went there and started a fight with a staff member and had to be removed from the bar.

An investigation into the incident which occurred on 18 May 2024 was ongoing and an investigation meeting was to be held with the Worker to provide him with the opportunity to present his perspective on the events under investigation.

On 23 May 2024, a colleague raised a complaint in relation to the Worker’s conduct. The Employer was informed that the Worker was not assisting female staff and was not helping with general duties such as stocking toilet rolls/hand towels and cleaning.

On 28 May 2024 the manager of a nearby bar contacted the Worker’s Line Manager regarding an incident with the Worker as follows:

“Hey man, was just calling to flag something that happened with [the Worker] there.

Kinda just barged into [our pub] there and started walking straight towards behind the bar without greeting/announcing himself to anyone. [L] was sitting in one of the booths nearby was like “hey what’s up”. But he ignored her and just kept going but [M], one of the new staff was there and asked him what he was doing. After that he goes “I’m here for lime juice and egg whites, I’m from [the Employer]”.

But we hadn’t been contacted at all, and he had just barged in, not trying to say hey or communicate with anyone here, and we currently don’t have any to spare so had to send him on his way empty handed.

Just wanted to flag it with you cause it was pretty fuckin rude on his part tbh.

Like sound if you need to borrow something but ignoring staff here when they try to say hello, or making to go behind the bar unannounced for stock you haven’t asked for etc 

Made [M] and [L] both pretty uncomfortable and they both felt it was really rude so just letting you know.”

On the same day, 28 May 2024, two other incidents took place in the Employer’s premisses. 

The first incident of this date involved staff member A, who was aggressively addressed by the Worker in relation to his smoking.   

The other incident occurred late in the night when the Worker was told to clean the centre cocktail station by his supervisor.  Bartender B asked the Worker for access to the cocktail station to make a drink as the other cocktail station had previously been cleaned. The Worker started shouting at Bartender B and continued shouting at her in front of customers until his Supervisor intervened and told him that is not how they deal with other staff and that is not how they handle things.  The female staff members made a complaint as they believed that the Worker behaved rudely only with them, which felt misogynistic.

This complaint was going to be investigated by the Employer along with other grievances raised against the Worker.  However, as the Worker was on probation and his Line Manager had been made aware of multiple complaints from staff along with what happened in the previous week with the neighbouring business, he decided to terminate the Worker’s employment on 4 June 2024 by email. The Employer submits that the Worker’s employment was terminated in the heat of the moment by his Line Manager. 

The Worker was contacted by the Managing Director on 7 June 2024 who apologised on behalf of the Employer and retracted the termination of the Worker’s employment, informing him that an investigation would be conducted in respect of the alleged incidents regarding his conduct and also offered him the opportunity to raise a formal grievance in respect of the incidents mentioned on his email dated 4 June 2024.  The Worker refused the offer.

Nonetheless, on 11 June 2024, the Managing Director contacted the Worker to ask him to reconsider his decision, so that his concerns could be addressed through the formal grievance process.  The Worker never responded to the Employer’s email and referred the dispute to the WRC.

The email terminating the Worker’s employment was sent on 4 June 2024, he was paid an extra week from 4 to 10 June 2024 and the employment officially ceased on 19 June 2024.

The Employer contends that the Worker was not unfairly dismissed for the following reasons: 

·        the dismissal was retracted by the Employer, 

·        a meeting with the Managing Director was offered to discuss the case further, 

·        a formal grievance procedure was offered to the Worker to be conducted by an independent, external third party with the assistance of a translator or interpreter who would be available throughout the grievance process to ensure a fair and transparent process, and

·        an investigation prior to any disciplinary procedure would take place to investigate the complaints in relation to the Worker’s conduct in the workplace.

The Employer asserts that the Worker was dismissed in the heat of the moment by his Line Manager, during his probationary period due to several issues and complaints raised against him in a short period of time. The Employer asserts that, if an employer dismisses an employee in the heat of the moment, but subsequently and shortly thereafter takes steps to retract the dismissal, then the employee would generally be precluded from claiming unfair dismissal. In this dispute, the Employer retracted the Worker’s dismissal inviting him to a meeting to discuss the case further, and to resume his duties further to the meeting. The Worker was also invited to raise a formal grievance.

It is the Employer’s position that, since the dismissal was retracted and fair procedures were open to the Worker, who refused to engage with the Employer to resolve matters, the Worker is precluded from claiming unfair dismissal.

The Employer contends that should any compensation be awarded it should reflect the actual financial loss experienced by the Worker arising from his dismissal and should also reflect his efforts to mitigate his loss by finding alternative employment.

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

There was no dispute that the Worker’s Line Manager issued an email dismissing him without adherence to proper procedures or regard to fairness.  When the Respondent realised this, the Managing Director became involved in the matter and contacted the Worker on two separate occasions to retract his dismissal.  The Managing Director offered the Complainant an opportunity to raise a grievance in line with the Employer’s procedures.  The Managing Director also indicated that the Employer would commence an investigation into the Complainant’s alleged misbehaviour.

The Worker refused to engage with the Managing Director because he believed that the trust between him and the Employer has broken down and that a continuing employment relationship was not possible.

It is well established that if a dismissal is made in haste, and a genuine effort is made to retract the dismissal, an employee in such a situation cannot view himself as having been dismissed.

In this case, the Managing Director of the Employer organisation contacted the Worker on two separate occasions to retract his dismissal.  I am of the view that escalation of this matter to the most senior manager in the organisation is indicative of how serious the Employer was in its efforts to address the error that had been made.

In light of the Employer’s attempts to retract the Worker’s dismissal and the Worker’s failure to engage, I am not in a position to recommend in favour of the Worker.

I do not recommend in favour of the Worker.

Unfair dismissal – retraction not realistic