Worker

Employer

Anonymised Parties

An Assistant Manager

A Restaurant Chain

Representatives

Self-Represented

Nicola Murphy of Peninsula Business Services Ireland

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 - 00002760

13/06/2024

The issues in Dispute concern the alleged Unfair Dismissal of the Worker as, in effect a Management penalisation and retaliation for the Worker raising serious concerns regarding the behaviours of a Senior Chef.

The Employment began on the 9th October 2023 and ended on the 2nd May 2024.

 The rate of pay was stated by the Worker to have been € 3,333 gross per month for a 48-hour week.

The Worker, who was unrepresented ,gave a lengthy oral testimony supported by extensive copy e mails and work documents..

He alleged that he had made a number of detailed complaints to the Management regarding a fellow worker, a Chef, Mr Z. The Worker alleged that the Chef, in question had bullied him and other staff. He had used offensive language and made the Kitchen of the Restaurant a “Toxic”  environment such that the Worker had to take Stress related Sick leave.  A major incident took place on the 11th April between the Worker and the Chef. Serious threats of physical violence against the worker had been made by the Chef. Matters had got very heated.

In his internal complaints regarding this incident ,the Employer HR Department, had effectively fobbed off the Worker. Investigations were largely pro forma exercises with no real meaning. The Management had then dismissed him from employment as a “retaliatory” step for his raising of complaints against the Chef.

He had not appealed his Dismissal as he had felt that it would be pointless.

Other Management accusations that he had used inappropriate Social media sites to communicate with staff were baseless.

The Employer was represented by Ms Murphy of Peninsula Business Services supported by Senior Mangers Ms P McQ (remotely from Glasgow) and Ms A McQ. An extensive written submission supported by appendices of copy documents was relied upon.

Procedurally the Employer cited records, emails of Investigation and Disciplinary hearings. Witness statements were presented in supporting evidence.

The Employer cited three issues of concern. The first being allegations made in early January 2024  by a staff member regarding inappropriate personal messaging from the Worker to another staff member in early 2024. The staff member had complained and a local HR manger , Ms X, had investigated. The issue was eventually resolved without any disciplinary actions.

The second issue was the incidents of the 11th April 2024 involving the Chef Mr Z and finally the use of a Contact Website, Tinder,  by the Worker to communicate with other staff.

The Third issue was the open use of non-Work related Social media Aps to communicate with fellow staff during working time. One App in particular, Tinder,  was open to, possibly ,considerable upset to some staff.

Key Oral testimony was given by Ms P McQ, the former Head of HR.

Ms P Mc Q, although based in Glasgow throughout , had overseen all the HR activities undertaken by more junior Irish Colleague Ms X . All proper HR procedures were followed.

Ms P McQ had effectively counselled/advised  the Worker following the January incidents. The issues were delicate and involved the private orientations of the Worker. None the less the Worker had later used the Tinder site to attempt to initiate personal communications with the Chef. The Chef had reacted strongly and most negatively against this communication.

Ms X had then investigated the 11th April incident and witness statements were taken and presented in evidence. The Chef had admitted that he had made strong remarks with rough language and apologised. The Worker also admitted that he had also made strong remarks also with rough language regarding the Chef and he also apologised.

It had proceeded to a full disciplinary hearing on the 2nd May 2024 against the Worker chaired by Ms McQ, Head of HR, Ms McQ . In her Oral Testimony, she  stated that she had reviewed all the evidence involving the Worker and the incidents involved. She had afforded him a full opportunity to make his case.

Regrettably ,on balance ,she had felt that the employment relationship had to end and she had dismissed him. Full opportunity to Appeal had been offered which the Worker had declined.

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

3:1         Discussion

It was clear that different life style choices and the means of communicating these among & between the staff was not a helpful factor in the entire situation.

The Oral testimony was a crucial factor especially the Testimony from Ms McQ, the former HR Director from Glasgow.  She presented as a most competent experienced Manager used to dealing with staff ( from a variety of orientations & backgrounds) issues across the UK and Ireland.  She had been fully engaged with the case. She had effectively “marked the Worker’s cards” in February and she felt by May that the Worker had not “got the message”. Personal life style issues should not impact on the proper and efficient operation of the Restaurant.

The incidents of the 11th April 2024 had been fully investigated. The Worker had not denied his involvement.  Full procedures , witness interview/ statements taken, offer of Representation and proper correspondence issued were employed by the Employer to the date of the 2nd May 2024 meeting.

Ms McQ,  the head of HR, at the Disciplinary meeting of the 2nd May 2024  took issue with   the overall performance of the Worker as a Manger of staff. She clearly felt that it was not up to the required standard particularly bearing in mind the February meeting. In addition she also was of he view that the Worker was not using his time properly especially by his use, during work time,  of the non-business related Social media Apps.

She effectively dismissed the Worker during the meeting.

From a HR Procedural view point Dismissals by Managers ,without even a period of consideration, are generally symptomatic of a pre conceived viewpoint. Ms McQ , in her excellent Oral Testimony, clearly demonstrated that ,from her experienced managerial point of view, the worker concerned was not suitable for the business irrespective of any Life Style considerations. She made it plain that she had a full grasp of the entire situation. Detailed written evidence was presented including the full minutes of the 2nd May 2024 meeting. This material and the supporting Oral testimony of the Parties was considered carefully by the Adjudicator.

From a Procedural point of view it was noted that the Worker had not exercised his Right of Appeal. His belief that it would be futile was an assumption that was never actually put to the test.

In this case the lack of a period of reflection by Management is not helpful to their defence  but on overall balance , particularly in this case,  in not fatal to the Employer case.

In a pre-12 month Unfair Dismissals Act,1977 service situation ( where no exceptions are being pleaded)  the Employer can end an employment,( for example Dismiss during a Probationary period)  on the basis that either or both parties are not suitable for each other. Legal precedent is strong on this point. The O’Donovan v Over C Technology Ltd case in the Court of Appeal [2021] IECA 37 has the following quote from Ms Justice Costello at Para 49

During a period of Probation ,both parties are and must be-  free to terminate the contract of employment for no reason or simply because one party forms the view that the intended employment is, for whatever reason , not something with which they wish to continue”

It has to be noted however that the Dismissal in this case was for Gross Misconduct not a Probation issue per say but the views of Ms J Costello are still basically applicable.

3:2        Summary Conclusion

Taking all evidence into account the conclusion is that a case for Unfair Dismissal under the Industrial Relations Act,1969 has not been made out.

 The Recommendation has to be that the Parties accept the outcome of the Internal processes and that no Unfair Dismissal took place.

Unfair Dismissal , industrial Relations Act,1969