FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : BROWNES OF SANDYMOUNT LIMITED (REPRESENTED BY FRANK MURPHY SOLICITORS) - AND - FILIPPO POLLINA (REPRESENTED BY GROSSO & MALDONADO SOLICITORS) DIVISION : Chairman: Mr Geraghty Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No:ADJ-00013695 CA-00017881-001
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 19 October 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 12 March 2019. The following is the Determination of the Court:
DETERMINATION:
Background
This is an appeal by Brownes of Sandymount, against a decision of an Adjudicating Officer under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. For ease of reference, the former employee, Mr. Pollina, is referred to as at the adjudication as ‘the Complainant’ and his former employer is referred to as, ‘the Respondent’.
The Complainant worked as a waiter for the Respondent for a period of about 16 months until December 2017.
The circumstances of the termination of this employment relationship are a source of contention.
The Complainant states that he was advised by the Restaurant Manager in the days after Christmas 2017 that he was not going to be put on the waiters’ roster for January.
The Respondent states that the Complainant was not dismissed. Rather, the Respondent states that he had indicated on many occasions his intention to leave the employment and that, specifically, he had advised the General Manager of his intention to do so at a meeting in mid December 2017. The Respondent states that the Complainant failed to attend for his shift on 31 December and then failed to respond to calls, leading to the reasonable belief that he had left his employment. The casual nature of such a departure was said to be relatively common in that industry.
The Complainant referred a claim under the Act together with a claim under Unfair Dismissals Acts 1977 to 2015 to the Workplace Relations Commission, (WRC). The Respondent did not attend at the WRC.
The Adjudication Officer found in favour of the Complainant and in respect of the issue under this Act awarded one week’s pay in respect of notice.
The Respondent appealed this decision.
Respondent’s arguments
The Complainant left his employment because he wanted more working hours, although he worked the most hours of all waiters. The Respondent was not in a position to offer any Employee more hours because of the expected decrease in business in January.
In various discussions with the General Manager in December 2017, the Complainant indicated his intention to leave after 31 December 2017, and he reiterated this to his own manager in Christmas week 2017, in a discussion about the normal reduction in business in January.
The Complainant had failed to show up for his shift on a busy night of 31 December 2017 and had not responded to telephone calls.
This led the Respondent to the reasonable assumption that the Complainant had simply left his employment in line with what he had indicated previously. However, if he had shown up subsequently he would have been put on the roster.
As evidence of the Respondent’s goodwill, the Respondent had provided the letter necessary to the Complainant to enable him to apply for Jobseekers’ benefits.
The Respondent did not dismiss the Complainant. He simply left his employment. Indeed, because the Complainant had not submitted any formal resignation, a contract of employment was sent to him on 2 January 2018.
Complainant’s arguments
The Complainant was dismissed and was not permitted to return to work after 1 January 2018. He was given no written explanation and was not paid his notice.
The Complainant did not resign. He was left with an unequivocal message that there was no further work for him.
Following his dismissal, the Complainant requested, and was given, a letter from the Respondent dated 5 January 2018 confirming that he was dismissed for an alleged reason of lack of work.
On 9 January 2018, the Complainant texted the Respondent, in the course of which he reminded the Respondent that he had been ‘fired’. This was not denied by the Respondent.
The Evidence
Respondent’s witnesses
Mr. Oscar Navarro
Mr. Navarro became General Manager of the Respondent on 1 January 2018. For 6 weeks prior to that by arrangement with the owner he had monitored the business and he gave evidence that. as part of that process, he had met the Complainant in mid December 2017, who had told him of his intention to leave after December. He had advised the Complainant’s manager , Mr. Diciolla, of this but the manager was fairly unconcerned as he was told that the Complainant regularly said such things.
Mr. Navarro testified that the Complainant would have been rostered in January if it was clear that this was what he wished. He drew attention to the fact that a contract had been sent to the Complainant even after he had failed to turn up for his shift on 31 December 2017.He testified further that he had endeavoured to be helpful to the Complainant in providing him with a letter to help him to obtain Jobseekers’ benefits. He regarded the contents as an attempt to be of assistance. He testified also that, at no point, had a dismissal or redundancy of the Complainant been discussed or considered. Indeed, the shortage of staff had led to the necessity for him to ‘fill in’ on occasion.
Under cross examination, Mr. Navarro repeated that the Respondent was trying to be helpful in providing the letter to the Complainant regarding his application for Jobseekers’ benefits. In relation to the text received by him on 9 January 2018, in which the Complainant referred to having been ‘fired’, he stated that he had passed this to the Complainant’s manager, Mr. Diciolla, to follow up.
Mr. Alessandro Diciolla
Mr. Diciolla gave evidence that he knew the Complainant well and that the Complainant complained a lot and often spoke of leaving the restaurant. Specifically,in a conversation with the Complainant in Christmas week 2017 regarding the expected downturn in business in January, the Complainant had stated a clear intention to leave for alternative employment and he had expressed thoughts on the possibility of going to London. He went on to state that Mr. Pollina then failed to turn up for his shift on 31 December 2017 and had failed to respond to calls, leaving the restaurant short of staff.
Subsequently, he stated that the Complainant had contacted him to request a letter to help him to claim benefits, which he had then passed on to Mr. Navarro, who had accommodated the request.
Mr. Diciolla stated under examination and again under cross examination that subsequent to a text received by Mr. Novarro from the Complainant, in which he had stated that he had been ‘fired’ and in which he sought a notice payment, he telephoned the Complainant and while he told him that, as he had not been fired, he was not entitled to a notice payment, he did indicate that there were tips available for collection by the Complainant and he invited him to come in to collect same but this did not happen as the Complainant never showed up.
Mr. Diciolla stressed his good relations with the Complainant despite some difficulties with him in his work such as an unwillingness to clean and some incidents with other staff.
Under cross examination as to why no formal response had been sent to the Complainant’s text of 9 January 2018, he re-stated that he had followed this up by telephone.
In reply to questioning as to why the Complainant’s name was not on the January roster if he had not been dismissed, the witness stated that this roster had been drawn up by the owner, Mr. Bark
Mr. Peter Bark
Mr. Bark testified that he was the owner of the restaurant. He had drawn up the roster for the first two weeks of January 2018. This did not contain the name of the Complainant as he had stated his intention to leave and had not shown for his shift on 31 December 2017.This roster was a fluid document subject to change to meet service requirements and if the Complainant had indicated a clear intention to turn up for work, he would have been accommodated.
Mr. Bark acknowledged that his business had handled this matter badly but stressed that the Complainant had not been dismissed or made redundant but had simply left, something that happened frequently in the industry. If he had wished to dismiss the Complainant, he would have ensured that the Complainant would have been given a reason and would have been paid for any notice, as happened in any cases of dismissal in his business.
Complainant’s witness evidence
The Complainant offered as a witness a person who had no direct knowledge of the issues in dispute. When this became apparent, the Court determined that the evidence of this witness was not relevant and that. as he had started to give evidence, this evidence would form no part of the Court’s consideration.
Mr. Filippo Pollina
Mr. Pollina is the Complainant. He gave evidence that he had articulated difficulties with the Respondent from early in his employment as the Respondent had failed to live up to promises made when he was recruited, in particular regarding the guarantee of full time hours but also regarding the provision of meals, the distribution of tips and the requirement to engage in cleaning duties. He denied, however, that he had constantly threatened to resign.
He denied the evidence of Mr. Navarro that he had advised of his intention to resign. He gave an entirely different account of the conversation with Mr. Diciolla in Christmas week 2017, stating that he had not stated an intention to leave, he had never expressed a wish to go to London but, rather, Mr. Diciolla had told him that he would not be on the roster in January. For this reason, he had not turned up for his shift on 31 December 2017. It was why he had requested a letter to help him claim Jobseekers’ benefits, a letter which made clear why he had been dismissed and it was why he had sent a text referring to having been ‘fired’.
Under questioning, he stated that he had since done a training course for security work, having taken a month to relax and had secured employment in that industry in July 2018. He denied under cross examination that he had simply left the Respondent’s employment in order to secure a career change.
The Law
4.—(1) An employer shall, in order to terminate the contract of employment of an employee w4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuou4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of this employee shall be-
(a) if the employee has been in the continuous service of his employer for less than two years, one week,
(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,
(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,
(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks,
(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.
(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.
(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have effect as if that contract provided for a period of notice in accordance with this section.
(6) The Minister may be order amend or revoke an order under this section including this subsection.
Deliberation
Having determined under the Unfair Dismissals Acts 1977 to 2015 that the Complainant had been dismissed, it follows in accordance with the law as listed above that he is entitled to be paid one week’s notice.
Determination
The decision of the Adjudication Officer is up-held.
Signed on behalf of the Labour Court
Tom Geraghty
MK______________________
1 April 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.