Complainant

Respondent

Anonymised Parties

A bar supervisor

A brewery and pub business

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under the    Industrial Relations Acts

CA-00010704-001

07/04/2017

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

CA-00010704-002

07/04/2017

The complainant commenced employment on October 2^nd   2016 as a bartender and in December that year, he was promoted to the role of   supervisor. He was dismissed on April   6^th 2017. He was not   represented at the hearing.

The respondent company is one of three pubs which is part   of a brewing and pub business established by two entrepreneurs in September   2013. One of the founders attended the   hearing.

Having joined the business working in the company’s   Fairview pub, the complainant said that he got on well with his manager, who   recommended him for promotion. When   his manager was absent for six weeks due to an injury at work, the   complainant took on the duties of the assistant manager, who had recently   been dismissed. During this time, he   said that he sometimes worked up to 60 hours per week. Between October 2016 and when he himself   was dismissed in April 2017, he said that he received three pay increases   bringing his hourly rate to €13.00.

At the end of March 2017, the complainant said that he   took five days’ holidays, during which he got a WhatsApp message from the   person in charge of the three pubs querying why he ordered six bottles of   spirits. He said that he replied   saying that he would respond when he was back from holidays. On the day he returned, he was met by the   pubs manager who told him that he was no longer required and instructed him   to hand back his keys. He said that he   was not given any reason for his dismissal.   A couple of weeks later, he contacted the accounts department and on   April 30^th, he received a sum of €575.77 gross in respect of 44.29   hours’ accrued holidays.

When he was asked for his opinion about the reason for his   dismissal, he said that he thinks that the person in charge of the pubs took   a dislike to him.

When asked about his current job status, the complainant   said that he got a full-time job in August 2017 and from the time he was   dismissed until then, he did temporary work.

On behalf of the respondent, the co-founder said that the   complainant was dismissed for coming to work drunk. He said that he didn’t know when this   occurred, as he had been informed about it by the person in charge of the   pubs. He said that this person was not   available to attend the hearing due to mental health issues. He also said that he was told that the   complainant was ordering stock when he was not authorised to do so, although   he himself could not say if the complainant was responsible. He said that in his own view, the   complainant was not treated in an unfair manner.

Findings

When he was questioned about coming to work drunk, the   complainant accepted that this had happened once, shortly after he started   with the company. He said that his   manager had discussed the incident with him and had “forgiven him.” He said that he received two pay increases   after this incident and he had been asked to substitute for the assistant   manager. He said that this   demonstrated that he and his manager had moved on from the issue.  

When asked to respond to the allegation that he was not   authorised to order stock, the complainant said that he was working in the   absence of a manager and assistant manager and that it was his job to order   stock. He said that he ordered the   particular six bottles of spirits because customers were asking for the   product and he wanted to see how they would sell.

From the evidence presented at the hearing, the facts are   as follows:

Having worked for the company for six months, the   complainant was dismissed without notice and without going through a basic   disciplinary process. He was not given   a reason for his dismissal, was not informed that he could appeal the   decision and he didn’t receive a statement confirming that his employment was   terminated.

Conclusion

From the information presented at the hearing, it is   apparent that the company where the complainant worked is not regulated in   accordance with even the most basic procedures for managing the employment   relationship. There is no evidence of   the existence of an employee handbook in paper or electronic form and there   are no procedures for managing disciplinary and grievance issues. The complainant was not issued with a   contract of employment and there was no mention of induction, probation or   training.

Statutory Instrument 146/2000 establishes a Code of   Practice on Grievance and Disciplinary Issues. Section 2.2 states:

“…the principles and   procedures of this Code of Practice should apply unless alternative agreed   procedures exist in the workplace which conform to its general provisions for   dealing with grievance and disciplinary issues.”

It is accepted that a relatively new business with a small   number of employees may not have the resources to write up HR procedures and   the purpose of this Code of Practice is to establish a baseline that all   employers can adopt. The failure to   have a procedure or to use SI 146/2000 creates uncertainty for employees   whose conduct is being questioned and removes the requirement for clarity   that a sequential process is intended to provide. In the case of this complainant, the   failure to use a disciplinary procedure denied him the opportunity to respond   to his employer’s decision to dismiss him, to ascertain the reason for his   dismissal or to appeal against it. As   a result of the absence of a proper procedure, the dismissal was unfair.

Due to the failure of the respondent to adhere to an   accepted process for managing the dismissal of the complainant, I recommend   that he pay the complainant compensation of €1,040, equivalent to two weeks’   pay, based on €13.00 per hour for 40 hours per week. An award of compensation is not subject to   deductions of tax, PRSI or USC.

The complainant said that shortly after he commenced employment   with the respondent, he asked for a statement of his terms and conditions of   employment. He said that he made a   number of requests but never received a statement.

The respondent accepted that the complainant was not   issued with a statement of his terms and conditions of employment. He said that he didn’t know who was   responsible for HR matters, but that the company is working on statements for   its employees.

Section 3 of the Terms of Employment (Information) Act   1994 requires an employer to provide a written statement of terms and   conditions of employment not later than two months after the date of   commencement of an employee. It is   evident that no such statement was provided to this complainant and his   complaint is upheld.

In these circumstances where the complainant has been   dismissed and there is no opportunity for the employer to address the failure   to provide a statement, I make an award of compensation of €2,080, equivalent   to four weeks’ pay. An award of   compensation is not subject to deductions of tax, PRSI or USC.