Complainant

Respondent

Parties

Peter  Swaine

Barmal Hospitality Limited t/a Arthur's

Complainant

Respondent

Representatives

Ms J Wright, Solicitor of  Sean Ormonde  & Co. Solicitors

Company Manager/Owner

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00065264-001

08/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00065264-002

08/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00065264-003

08/08/2024

The issues in contention concerned the Penalisation, a dismissal, of the Complainant (A Chef) by the Respondent, a Gastro Pub. Associated complaints were an Organisation of Working Time complaint over alleged excessive working hours and Terms of Employment Information complaint regarding the non-supply of a Contract of Employment to the Complainant.

The employment began on the 18th August 2023 and ended on the 13th July 2024.

The rate of pay was stated by the Complainant to have been €1,100 per week.

.

The Complainant was represented by Ms Wright, Solicitor. Extensive Oral Testimony was given supported by a substantial Written submission.

1:1        Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA - 00065264-001

The employment commenced on the 18th August 2023 and proceeded happily for a number of months. There were a number of Health and Safety equipment issues in the Kitchen, in particular a Gas Oven, which the Complainant consistently raised with the Respondent. Photographs were submitted in evidence. The Complainant alleged that the Respondent failed to address these issues properly and repeat equipment issues kept arising.

In March 2024 the Respondent hired a Bar Manager, Ms M. Things did not go well. The Complainant alleged that Ms M had constantly verbally Bullied and Harassed him often in most vulgar language.

The Complainant raised the issue of Ms M behaviours with the General Manager, Mr McK on numerous occasions but to no avail. Copy e-mails submitted. An incident of the 20th June 2024 between Ms M and the Complainant was cited as a particular and most grievous incident.

The Complainant noticed a major cooling off in his relationship with the General Manager from this period onwards.

From early 2024 the Restaurant had experienced severe staffing issues with the Complainant, and a single Kitchen Porter, often left to operate a busy kitchen. The Complainant raised this issue with the GM, Mr McK on numerous occasions. E-mail traffic submitted. The Respondent failed to address this staff shortage issue properly.

On the evening of the 13th July 2024 the Complainant was called to a meeting with the GM, Mr McK and his Father Mr D McK. At this meeting he was informed that the Kitchen was “losing money” and that he was no longer required. He asked if he was being “fired” to which they replied in the affirmative.

The Complainant understood that a new Chef was hired and began work, two days later, on the following Monday.

Ms Wright for the Complainant emphasised that absolutely no proper HR procedures were followed, no Warnings were given, and no Right of Appeal was offered. The Complainant had never been provided with a Contract of Employment and no procedures were outlined as to his employment rights or status. It was a grievous case of Unfair Dismissal.

He had, in all good faith, made very legitimate H & S complaints regarding the faulty and unsafe equipment in the Kitchen, the ongoing shortages of staff and the unacceptable behaviour of Ms M, the Bar Manager. It was clear that the Owners, Mr McK, father and son, had decided to dismiss the Complainant as a Retaliation and a clear Penalisation for the H & S complaints.

Section 27 subsections 1,2 & 3 of the Safety, Health and Welfare at Work Act 2005 clearly define “penalisation” as “suspension, lay-off or dismissal”. In this complaint there can be no doubt that this was the case.

1:2        Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00065264-002

The essence of the Complainant’s complaint was that no proper work breaks were possible in the Kitchen and all staff just had to keep working regardless. Incidents regarding closing the kitchen for a brief break in the afternoon were raised to demonstrate that the Respondent simply refused to countenance this. The Complaint had maintained a Work Diary to illustrate incidents.

1:3         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00065264-003

The Complainant had never received any written statement of his Terms and Conditions, as set out in the Act, or a Written Contract of Employment.

1:4        Final Summary

Ms Wright submitted considerable case law precedent in support of the case. Stobart Driver Services Ltd v Carroll [2013] IEHC 581 as regards Penalisation Dismissals and Tribune Printing and Publishing Group v GPMU DWT 6/20024 ELR 22 in support of the Working time complaint. In relation to the employment Information complaint Beechfield Private Homecare Ltd v Hayes-Kelly TED 1919 was cited in support of a maximum award.

All things considered it was a grievous case of Penalisation as set out in the Safety, Health and Welfare Act, 2005.

An Exemplary and Punitive award was due to the Complainant.

The Respondent was unrepresented but gave a very detailed Oral Submission from the General Manager, Mr McK. No written submission was offered save for some background financial papers.

2:1        Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA - 00065264-001

The Manager, Mr McK, outlined the background to the case as the Respondent saw it. He presented a very capable and experienced Manager in the Bar/Catering trade.

The Pub was located very close to a main tourist Attraction in the Liberties. During Covid-19 the Food Service had not operated and furthermore repairs were necessary to the premises in late 2022 and early 2023.

By the Summer of 2023 the Respondent felt able to resume a Food Service as the premises was ready and Tourist footfall was approaching normal levels. The Complainant was an experienced senior Chef with it appeared a good track record. He was hired in August 2023 to re-establish the Food Service in the Pub. As the kitchen had not been in use for a considerable period there were obvious equipment issues. These were quickly identified by the Complainant and all necessary Respondent steps to either repair or replace were put in place. There was never a situation as portrayed by the Complainant that proper H & S issues with equipment were being ignored.

The Kitchen was a major financial issue for the business and he, the General Manager, had kept a very close eye on performance.

In early 2024 it had become a worry to the Respondent that the Complainant, while a very good Chef as regards Food Preparation, had major shortcoming as regards the organisation of a busy kitchen. The Positon was that of Head Chef which has a very large organisation of the Kitchen, staff, rostering, recruitment, physical environment, physical cleaning, hygiene etc involved. This was an area that the Complainant appeared to have shortcomings in. A Bar Manager, Ms M, had been appointed in March 2024. It soon became obvious that the efficiency demands of Ms M, as regards running the Front House and the Complainant in the Kitchen gave rise to a number of quite strong verbal clashes with strong language used.

The Respondent had reviewed the percentages of Revenue to Expenditure being allocated to the Kitchen and had gotten alarmed. Figures /Ratios were submitted in evidence. A decision was made that the Complainant was not a suitable Head Chef, and he had been replaced. Running a City Centre Gastro Pub Kitchen beside a major Tourist Attraction required a particular high level of organisational /operational skills in a Head Chef and unfortunately, the Complaint fell short in this area. Constantly calling for more staff to be recruited was not a substitute for developing efficient systems and procedures. The Manager had previous experience of the contrast between efficient and inefficient Kitchen Head Chef managers.

It was a pure business decision to let the Complainant go, unfortunate for the Complainant, but it had nothing to do with his alleged Health and Safety unsafe equipment concerns or personality issues with Ms M. He was simply not able to handle the demands of the positon.

It was important to note that a HSE Environmental Health Inspection in early 2024 had commented unfavourably about the general sate of the Kitchen. The HSE E & H Report was not presented to the Adjudication.

2:2          Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00065264-002

As regard working Time and Breaks the Complainant had been the Head Chef and was essentially responsible for his own breaks and those of his staff. There had never been any Management policy to ignore the legislation and if breaches had occurred it was regrettable. It was further evidence of the managerial shortcomings of the Complainant.

However, no real evidence other than assertions were made by the Complainant which the Respondent could not now investigate. The Respondent had the electronic system Bizimply to record times.

2:3        Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00065264-003

There was no defence offered here. The Complaint did not have a Written Contract but in the Bar/Food Trade this would not be unusual.

3:1        Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA - 00065264-001

3:1:1   Legal Discussion

Section 27 of the Safety, Health & Welfare at Work Act, 2005 provides a follows.

Protection against dismissal and penalisation.

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(Underlining by Adjudication Officer.)

Accordingly, the question then arises as to whether or not the Complainant has the qualifying service to bring a Dismissal / Penalisation claim.

3:1:2       Service Qualification.

Under Section 27 (4) Penalisation is deemed to Include Dismissal for the purposes of the Unfair Dismissals Act,1977. The case of Sharma v EAT [2010] ELR 262 established the point that the normal 12 months service rule applied here. However, the Sharma case also indicated that this service qualification did not apply to cases brought under Section 28 of the Safety, Health and Welfare Act 2005. The issue is considered by Mr Des Ryan at Para 23.22 of Redmond on Dismissal Law, 3rd Edition, 2017.

Case Law was forwarded to the Parties post the Hearing for comment on the Service issue. The Complainant submitted a brief reply.

Accordingly having considered all the Legal issues, this case of Penalisation as defined in Section 27 of the Safety, Health and Welfare at Work Act,2005 can proceed even with the shorter service of the Complainant

3:1:3 “But For” Consideration

The next question is then the “What If /But for” question as set out by the Labour Court in the O’Neill v Toni and Guy Blackrock Ltd case {2010] ELR 21 case -essentially it has to be demonstrated that the Penalisation arose directly as a result of Disclosures/Safety complaints. Where there are other factors in play, an automatic link to the H & S issues cannot be assumed.

The Labour Court referred to the case of O'Neill v Toni and Guy Blackrock Limited, where in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by s.27(3) of the 2005 Act. The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. The Labour Court stated in Monaghan v Aidan & Henrietta Mc Grath partnership of September 2016 PDD 162

“Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative clause in the sense that ‘but for’ the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”.

Further

The Court is of the view that the Toni and Guy case involved penalisation under the 2005 Act, nevertheless, the general principle enunciated in that case remains valid in the case under consideration.

In the case in hand the oral evidence of the Respondent, under Oath/Affirmation, was absolutely clear cut. The dismissal was for basically incompetence in the running of the Kitchen – equipment complaints were irritating but were never the “Operative Cause”. This blunt and direct message was maintained under cross examination.

The Oral testimony of the Complainant argued that no Chef could ever provide a Kitchen service when faced with recurrent equipment failures and constant staff shortages. He disputed the Incompetence allegation of the Respondent.

A key possible witness, Ms M, the Bar Manager, was no longer employed and was not available to give evidence. However, it appeared, albeit hearsay, that most of her issues seemed to be regarding kitchen service to the Bar.

3:1:4       Summary

In summary and relying heavily on the Oral testimony, especially from the Respondent Manager, the Dismissal was “competence” related and not related to the Safety / Equipment and or B & H issues with Ms M.

There was no doubt that the Dismissal was carried out very peremptorily and with no regard to SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary procedures. However, the Complainant did not have the required 12 months employment service to pursue a claim under the Unfair Dismissals Act ,1977.

On overall summary the Dismissal was based on a Respondent perceived lack of employee competence and not “But For” Safety complaints. The Oral Testimony of the Manager, under sworn affirmation, was very direct on this point.

On this basis and on the sworn testimony of the Respondent, the Penalisation complaint has to fall.

3:2          Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00065264-002

The complete absence of any records presented in evidence by the Respondent was telling. It was clear that the Complainant in his position as Head Chef was largely responsible for his own hours.

However, this is not a blanket exemption for the Respondent and due regard has to be had to the overall situation. The Oral Testimony referred to disputes regarding the taking of breaks in the afternoon where it seemed operationally impossible to do so without a complete Kitchen shut down.

On balance and having reviewed the Oral evidence the Adjudication view has to be that some compensation is due to the Complainant but heavily referenced to the duties of the role of Head Chef and its personal responsibilities. The Respondent view regarding Incompetence in organising the Kitchen has also to be weighed in any Redress consideration.

3:3        Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00065264-003

Section 3 of the Act sets out detailed requirements in a Contract of employment.

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires.

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

The E-mail of the 18th August 2023 from Mr McK was minimalist and certainly did not comply with Section 3 as set out above.

The Complaint has to be deemed Well Founded and Redress, a specified in the Act, has to be awarded.

Penalisation, Safety, Health and Welfare at Work 2005, Service issues.