EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
Graham O'Sullivan Restaurants Limited UD1668/2014
-the appellant PW331/2014
against the recommendation of the Rights Commissioner in the case of:
PAYMENT OF WAGES ACT, 1991
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr W. Power
Mr A. Butler
heard this appeal at Dublin on 26th January 2015 and 13th March 2015
Appellant: Mr. Brian O'Sullivan, IR/HR Executive, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
Appellant: In person
This case came before the Tribunal by way of appeals by the employer against the decisions of the Rights Commissioners Ref: r-139309-ud-13/RG and r-137937-pw-13/RG and r-137938-pw-13/RG. The employer is referred to as the Appellant the employee as the Respondent.
The appellant owns a number of restaurants and the respondent was employed in one of them as a General Assistant from 18th September 2006 until he was dismissed on 19th August 2013. At the time of his dismissal the respondent was earning €326.16 per week.
The first witness for the appellant, herein after referred to as JQ, is the Branch Manager of the restaurant in which the respondent was employed. JQ has worked for the appellant for 14 years in various other branches and commenced employment in that branch on 2nd April 2013. On or about 10th April 2013 JQ became aware of a dispute between the respondent and the Operations Manager. JQ told the respondent that he came across as rude to the Operations Manager but JQ did not issue a warning to him.
On 9th May 2013 the respondent took a break and purchased a coffee at the reduced staff rate. He was joined by his wife for this break and had been told that if the coffee was for his wife he would have to pay the full retail cost. JQ then observed the respondent’s wife drinking the coffee. The respondent later denied this and JQ issued him with a verbal warning. It was put to JQ that both the respondent and his wife drank the coffee but JQ told the Tribunal that this was not mentioned by the respondent at the time.
On 10th July 2013 the respondent was issued with a first written warning in respect of failing to follow correct policy in relation to washing dishes and utensils. The respondent had been made aware of revised procedures with regard to using hot water to rinse dishes etc. before placing them in washer. However he was subsequently observed using cold water on a number of occasions. It is important that dishes etc. are properly cleaned.
On 16th July 2013 the respondent’s supervisor asked him to return to work after his break time had expired and the respondent said he would in a second. He then followed the supervisor into the kitchen and was rude and aggressive towards her. The supervisor reported the matter to JQ who then met with both the respondent and the supervisor together. In the course of this meeting JQ asked the respondent to lower his voice and the respondent eventually apologised to the supervisor. It was JQ’s intention to issue the respondent with a second written warning but this was not done.
JQ found the respondent very difficult to manage, he was aggressive and rude and difficult to work with. According to JQ other staff felt the same. The appellant had no internal HR structure and JQ did not consult with any external HR specialists.
On 31st July 2013 the respondent and a colleague argued when a plate fell and cut this colleague on the leg after the dishes were piled too high. It was alleged that both parties used bad language however when JQ asked the respondent for his version of the incident he denied using bad language. JQ decided to park this issue until the Area Manager returned from holidays.
JQ had no involvement in the investigation or dismissal of the respondent.
The only other witness for the appellant is a Director and General Manager of the appellant, herein after referred to as JB. It was JB who decided to dismiss the respondent. He did not consider any other sanction given the circumstances, the respondent’s history and his colleagues’ unhappiness. JB told the Tribunal that he did not follow the appellant’s disciplinary procedure. Neither a second written warning nor a final written warning were issued to the respondent before he was dismissed and he was not given a right of appeal or written confirmation of his dismissal. The company was experiencing difficulties at the time. Part of the company’s operation had to be closed down. However JB made it clear to the respondent at a meeting that he (the respondent) had alienated so many of his colleagues that it was impossible to keep him.
JB referred to faxes from colleagues of the respondent but did not produce these at the hearing. He also referred to a letter from the respondent and a copy of this letter was submitted to the Tribunal. This letter outlined the respondent’s position in relation to incidents that had occurred in the work place.
JB did not consult with any external HR specialists and when he was asked by the Tribunal why not, considering the respondent’s job was at risk, JB replied that we should have and this is different now.
There was no evidence adduced in respect of the appellant’s appeal against the Rights Commissioner’s decision under the Payment of Wages Act, 1991.
The Tribunal heard evidence from the employee. He commenced work on 18th September 2006. On 20th December 2006 he received a contract of employment. His position was a general one but he mostly worked as a kitchen porter or on the floor. He told the Tribunal that problems began when (M) commenced working in the restaurant. He was not sure what her job title was but “unofficially” everyone knew that she was JB’s partner. He explained that on a certain date he was given a verbal warning because he shared a cup of coffee with his wife while he was on his break. M and JQ saw him with his wife and the coffee. JQ came over to him and said to him that he was not entitled to take a cup of coffee for his wife. He told her that it was his coffee and they were drinking from the same cup.
On 10th July 2013 he got a warning in writing for using cold water. He explained that between 06th June 2013 and 25th June 2013 he had been on holidays and during that time a new water boiler had been installed. When he returned on 26th June it was his first day back and nobody told him of changes to work practices. During that day of 26th June M came over to him and told him that he should not be using cold water for the dishes. The next day JQ asked him what M wanted from him. He told JQ that M told him that he should not be using cold water on the dishes. JQ told him the M had issued the same instructions to another worker and that they should follow M’s requests. Then JQ saw a cold tap running and told him that he would get a written warning. The witness explained that on one occasion he had tried to explain to M that he was not washing the dishes that he was rinsing the sink but M did not accept his explanation. M told him that he had no brain and that a warning letter would be waiting for him in the office.
On 16th July the supervisor (L) complained to JQ about him in that he tried to extend his break. He did speak to L about this but he did not speak to her in an aggressive manner. That same day JQ spoke to L and him about the matter and they agreed that it was a misunderstanding. He apologised to L and shook hands with L. He had thought that the problem was behind them. He did not on that day get any verbal warning or any warning, however on that day he did get a written warning dated 10th July 2013.
On 19th July 2013 he wrote a letter to JB and another regarding the situation. The letter was opened to the Tribunal. JB spoke to him and asked him if he had written a letter to him and he said that he had. JB told him that he would arrange a meeting they met on 08th August 2013. JB and JQ were at the meeting with him.
JB told him that he was suspending him for a week and would talk to the other workers and then decide what to do. JB scheduled another meeting for 15th August, it was not suggested that he could bring anyone with him. The witness gave evidence as to other letters that he had given to JB.
At the meeting of 15th August JB told him that he was terminating his contract, that he had been given enough warnings. He told JB that he had not been given a final written warning and JB told him that he would get a final written warning with his documents and pay. He received a letter on 21th September with his form p45 and details of his employment.
Having listened to all the evidence in this case, both oral and written, the Tribunal finds that there was a lack of fair procedures, together with the fact that certain alleged misdemeanours were petty and not warranting the ultimate sanction administered. In the circumstances, a series of written warnings should have been given to the Respondent employee, with adequate guidance as to how to improve his performance. This was not done, or adequately done. Human resource facilities were non-existent.
The Tribunal also finds that the behaviour of the Employer//Appellant in this case having regard to the circumstances was not the behaviour of a reasonable employer.
The Tribunal notes Section 6 (7) of the Unfair Dismissals Act 1977 as amended –
“Without prejudice to the generality of sub-section (1) of this Section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Rights Commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so –
(a)to the reasonabless or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal ……”
The Tribunal notes also the judgement of Mr. Justice Noonan in the High Court in the case of “The Governor and Company of the Bank of Ireland V James Reilly delivered on the 17th day of April 2015- page 15 and page 16 . –
“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view, but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”.
The High Court Judge having agreed with the above comments as enunciated by Judge Linnane in the case of Allied Irish Banks V Purcell, (2012) 23 ELR, 189, (P4).
The Tribunal determines that the Claimant was unfairly dismissed and upholds the Decision of the Rights Commissioner ref: r-139309-ud-13/RG, and awards, compensation in the sum of €20,000.00, under the Unfair Dismissals Acts, 1977 to 2007.
There was no evidence adduced in respect of the appellant’s appeal against the Rights Commissioner’s decision under the Payment of Wages Act, 1991, and the Tribunal declines Jurisdiction.
Sealed with the Seal of the
Employment Appeals Tribunal