Complainant

Respondent

Parties

Sean  Duggan

Crowes 1901 Limited trading as Crowes Bar

Representatives

Donal Gavin W.B. Gavin & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00064202-001

17/06/2024

The Complainant worked for the Respondent as bar manager from the 28th of April 2023 until the 13th of June 2024. At the time the Complainant’s employment ended the Respondent Company was in the process of being taken over by Mr Crowe, who attended the hearing on behalf of the Respondent and gave evidence under affirmation. Prior to this Mr Crowe had some involvement in the Respondent company, but not in the day-to-day running of it.

On the 30th of May 2023, the Complainant received a letter that his employment was being made redundant due to new ownership of the Respondent Company. The previous owner of the Respondent company signed this letter, she owned the Respondent company at the time. The Complainant received a redundancy payment. Mr Crowe was not involved in this process. The fact of dismissal is not in dispute.

When Mr Crowe took over the business he hired a number of staff.

The Complainant maintained his dismissal was unfair. The Respondent denied this.

Mr Crowe gave evidence on behalf of the Respondent under affirmation. He is the manager and joint owner of the Respondent company.

Mr Crowe submitted that he was a co-owner of the business and the building where it operated. He believed the redundancy was correctly done. There was an agreement in place to purchase the business, there was a set time for it to be completed by. The Complainant’s job was made redundant. Mr Crowe and other staff do those duties. No other staff have been brought in as bar managers. It was dealt with in a fair manner. Mr Crowe was surprised that he was being targeted.  He had no involvement at the time of the redundancy. 

The Crowe family have been involved in the business for 120 years. Mr Crowe got involved in late 2020. He was not dealing with the day to day issues until late June 2024. There were legal matters that had to be addressed. Mr Crowe had previous experience in the bar day to day. The Complainant job had included doing the stock control, staff rosters, bookings, and everyday issues that arose.   Mr Crowe has solely been doing them since June 2024. Some staff do some of those tasks but mostly, it is him. When the Complainant finished, there was only one other full time staff. Normally, there were 4-5 staff, three full time and the rest part time. The summer period would be busy. Therefore, Mr Crowe hired two others at the end of May and June. They were general bar staff.  One had since left of their own accord. There were two full time staff and then some other part time staff, 3-4. This would reduce further into winter.

Mr Crowe maintained that the Complainant was made redundant. He was coming into the business on a full time basis and was doing the manager role. Mr Crowe stated he always treated the Complainant fairly. The Complainant was told about the redundancy in May, and he received his payment. Those monies were not returned. Mr Crowe had seen the Complainant driving a minibus, collecting and dropping people. The bus can take 16-17 people.

Mr Crowe was then cross examined. At the time that the Complainant was made redundant, the Complainant was off sick, as his sister was terminally ill. There were only two staff employed at the time of the redundancy.

I then had questions for Mr Crowe. He accepted he had not been involved in the trading company until early June 2024. There was a deal being done to buy the business. He had to buy it warts and all. It was Mr Crowe’s understanding that it was the decision of the previous owner to make the Complainant redundant. When he came involved Mr Crowe looked for more staff. Mr Crowe’s understanding was that the Complainant was agreeable to finishing and had moved on. The previous owner met with the Complainant and told him that his role was ending. Mr Crowe believed there was one meeting. Mr Crowe had no knowledge of whether a matrix was undertaken for this. He stated that he knew what needed to be done to run the bar. Mr Crowe is unsure as to what the redundancy payment was.

Mr Crowe was then recalled as a witness to respond to the allegations regarding November 2023. He remembered the incident. He was socialising as normal on a Wednesday. The Complainant spoke to his mother. He was out of order, there were words exchanged. The Complainant left. Mr Crowe denied telling him to leave. At this stage, the owner at the time contacted Mr Crowe, stating that the Complainant worked for her. If there were personal issues between the two of them, they were nothing to do with the Respondent company. The Complainant went back to work. Mr Crowe accepted that he had not offered the Complainant any role in the business. He had been told that the Complainant was made redundant and that he was happy with it and the company was happy with it. Mr Crowe then looked for staff.

Mr Crowe stated that he organises the musicians, the bookings, emails, social media, organising the staff, getting additional staff, stocktaking, etc. He was not involved when the Complainant worked there.

Mr Crowe was then cross examined by the Complainant. Mr Crowe denied asking anyone to take on the managerial role. He asked people to do individual tasks instead. Mr Crowe believed that it was consensual that the Complainant had left. There was one person there at the time and he needed more, therefore, he had spoken to a number of people about this. He never sought to hire a general manager.

The Complainant gave evidence under affirmation. The Complainant stated that the letter from Gavins to the WRC should refer to him at paragraph c), not Mr Cummins. The Complainant highlighted that the CRO printout provided by the Respondent does not show Mr Crowe as a director of the Respondent company. The Complainant had received a letter that the Respondent Company was being sold on the 30th of May 2023. It appears this has not occurred. Is the process still ongoing?  Either way, the Complainant did not understand why he was let go last June if the transaction has not yet concluded.

The letter dated the 30th of May 2023 was referred to. It stated that the role was being made redundant, which is incorrect, due to a new owner. It was all very confusing.

The Complainant believed he received one week’s pay of €720 by way of redundancy payment.

The Complainant commenced work in April 2023. He was promised a wage of €700 after tax. Mr Crowe was aware of that as the Complainant had told him that when it was not working out at that amount. Mr Crowe responded to take it up with someone else. The Complainant believed he was about €7,000 short.

On the 22nd of November 2023, Mr Crowe and his mother were in the Respondent for a card game. There was a man there who always played. The Complainant asked that this man be included. There were words between the Complainant and Mrs Crowe. Mr Crowe was behind the bar and told the Complainant to get out if he did not like how things were being run. The Complainant went to the owner and got back in. Work was generally okay, bar that Wednesday card night.  They stay open late for that.

The Complainant then heard that Mr Crowe was buying in to the Respondent company. The Complainant was told by people that they were being asked by Mr Crowe to do his job. The Complainant stated that he had been shown text messages by others where Mr Crowe offered them ridiculous money, including to a staff member from another bar. Part of the deal appeared to be that the Complainant would be let go, as Mr Crowe and the Complainant did not get on.

The Complainant stated that the previous owner never told him that he was being made redundant, just gave him the letter. At the time he was off sick due to his sister’s terminal illness. No other position was offered. No-one asked him to do bar staff work, if he had, he would have done it.

The Complainant believes that Mr Crowe had very little to do with the business since he was made redundant. He knew this through a friend who had tried to make a booking. The Complainant disputed that he was treated fairly.

The Complainant accepted that he was driving three students to school. He got €80 a day for five days per week. It was a minibus; it couldn’t take 16 people. 

The Complainant was then cross examined. It was put to him that there was no screenshot of the text messages, or emails of the bookings.

From questioning by me, the Complainant stated there was no meeting about a redundancy.

I have carefully considered the submissions and evidence provided orally at hearing.

Section 6(1) of the Unfair Dismissals Act, 1977 states as follows:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Act, states as follows:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

The Complainant submitted that he was unfairly dismissed and provided a letter indicating that his employment was terminated due to a change of ownership and the new owner taking that role on. The CRO provided by the Respondent showed the same owners. The Respondent’s evidence set out that it hired other staff at this time, albeit not at a managerial level.

There was no evidence put forward by the Respondent’s of the proper procedures for redundancy being implemented such as consultation with the employees, matrix of the employees, etc. It was accepted by the Respondent that the Complainant was not offered any of these roles.

Having regard to the evidence, I am not satisfied that the dismissal of the complainant resulted from a redundancy. Further, I find that none of the proper procedures were utilised by the Respondent for a redundancy situation. Section 6(1) deems a dismissal of an employee to amount to an unfair dismissal unless there are substantial grounds justifying the dismissal. I am not satisfied that any substantial grounds justifying the dismissal have been put forward. Accordingly, I find that the complainant was unfairly dismissed.

Section 7 addresses redress for unfair dismissal.

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) 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,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(2B) Where—

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

In accordance with the provisions of section 7(1) of the Act, I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. The Complainant sought compensation. In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I am inclined to agree with the Complainant that compensation is the appropriate redress in this case. In the circumstances of this case re-engagement or reinstatement are not tenable alternatives to compensation.

The Complainant’s evidence was that he now drives a school bus. His remuneration is reduced from €720.00 per week to €320.00 per week.

As regards loss of earnings, the Complainant gave evidence of his new employment of driving a school bus. I am satisfied that the Complainant attempted to mitigate his losses. I am also satisfied that the Complainant has a loss of €400.00 per week in the school term. In that regard I find that the Complainant is entitled to €12,000.00.

I find this complaint to be well founded. I order the Respondent to pay the Complainant €12,000.00 in compensation for loss of remuneration arising from the Complainant’s unfair dismissal which I deem to be just and equitable having regard to all the circumstances.

Redundancy; Process; Failure to offer alternative role