INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MALIK OMER SHAHZAD
(REPRESENTED BY O ' HANRAHAN LALLY SOLICITORS
Chairman: Mr Hayes
Employer Member: Ms Cryan
Worker Member: Mr Shanahan
1. Appeal of Adjudication Officer Recommendation No. R-158531-UD-15.
2. The Worker appealed the decision of the Adjudication Officer to the Labour Court on the 21 March 2016in accordance with Section 9 (1) of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on the 29 June 2016. The following is the determination of the Court:
This is an appeal by Malik Omer Shazhad (the Complainant) against a decision of the Adjudication Officer ref r-158531-ud-15, that a complaint he made that he was, in breach of the Unfair Dismissals Acts 1997 – 2015, unfairly dismissed from his employment was not well founded. The Complainant appealed against that decision to this Court. The appeal came on for hearing on 29 July 2016.
Willogrove Ltd (the Respondent) operates a fast food restaurant under the Eddie Rockets franchise in the Liffey Valley Shopping Centre. The Complainant was employed by the Respondent as a chef in this location commencing in October 2013. He had two previous periods of employment with the Respondent. He had worked in the Tallaght outlet between January 2005 and July 2006 before he first worked in the Liffey Valley outlet between November 2009 and February 2011 when he was dismissed from his employment. He was re-engaged by the Respondent in October 2013.
Following a series of incidents the Complainant submits that he was dismissed from his employment on 12 February 2015 by Mr Paul McNally the owner of the franchise at a meeting that took place between them in another restaurant in the shopping centre. The Respondent denies dismissing the Complainant. It submits that the Complainant resigned from his employment. It submits that it discovered that the Complainant was employed full time in Eddie Rockets in Dublin City centre while working in excess of 20 hours per week in Liffey Valley. It submits that he resigned from his post after it was brought to his attention that, between the two locations, he was working in excess of the statutory maximum 48 hours per week.
Findings of Fact
The Court heard evidence from the Complainant and from Mr Paul Mc Nally regarding the disputed resignation/dismissal.
The Court finds that the Complainant and Mr McNally met in the shopping centre on the 12 February 2015 to discuss the Complainant’s employment. That conversation dealt with a number of incidents that had occurred between the Complainant and his line managers in the period leading up to the meeting.
In the course of the conversation regarding those matters Mr McNally became aware that the Complainant was working fulltime in the South Anne Street branch of Eddie Rockets. He told the Complainant that he could not continue to work in excess of the statutory maximum number of hours between the two locations. He told the Complainant that he was working full time hours in South Anne Street and that accordingly it would be best for him to continue working in that location and give up his employment in Liffey Valley.
The Court finds that the Complainant did not agree with that proposition. The meeting ended with both sides shaking hands but leaving on bad terms.
The Complainant contends he had been dismissed. The Respondent contends he had resigned.
Having heard the evidence of both the Complainant and the Respondent the Court finds that that he was dismissed from his employment by Mr McNally. The Court finds that the ostensible justification for this decision was that the Complainant was, between the two locations, working in excess of the statutory maximum of 48 hours per week. Mr McNally decided that this was not viable and decided to dismiss the Complainant from his position in Liffey Valley. In his own evidence to the Court he stated that the Complainant did not tell him he accepted this course of action. Instead he told the Court that he told the Complainant that he could not work in both locations and that as he had more hours in South Anne Street he should concentrate on that location. He said the Complainant did not say that he would agree to that. He said that the meeting became difficult and came to an end. He based his contention that the Complainant agreed on the fact that they both shook hands at the end of the meeting.
The Court finds that the Complainant did not resign. He resisted the decision to end his employment and told Mr McNally so.
The Court finds that the fact that he shook Mr McNally’s hand at the end of the meeting does not amount to a resignation. The Court finds that it was no more than a normal courtesy. The Complainant subsequently contested his dismissal and commenced the instant proceedings.
As the Respondent stated that it did not dismiss the Complainant and the Court finds that it did, the Court finds that the dismissal was unfair within the meaning of the Act.
The Respondent unfairly dismissed the Complainant without cause at a meeting on 12 February 2015. The complaint is well founded.
The Court has given careful consideration to the extent of the loss suffered by the Complainant and the infringement of his rights and entitlements under the Act. The Court orders the Respondent to pay the Complainant compensation in the sum of €4,000.
The Court so determines.
Signed on behalf of the Labour Court
23 August 2016Deputy Chairman
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.