ADJUDICATION OFFICER DECISION
A Bar Man
A Public House.
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant withdrew CA-00028400-001
Summary of Complainant’s Case:
The complainant was employed as Bar Staff by the respondent at a premises in Dublin. He commenced employment on the 16th of November 2018. The complainant worked primarily weekend shifts. His normal weekly hours were 16 hours for which he was paid €160.00 gross. The complainant was not provided with a statement in writing of his terms and conditions of employment by his employer at any stage during his employment.
In January 2019, the complainant joined Mandate Trade Union. Between January 2019 up to the date he was dismissed by his employer, the complainant was directly involved in encouraging several of his work colleagues to join Mandate Trade Union for the purpose of addressing a number of workplace issues regarding conditions and what they felt was unfair treatment by their employer. He and other union members working in the bar met outside of work to discuss approaching their employer about their concerns. They decided that the best way to approach their employer was to submit a joint letter.
On Friday the 5th of April 2019 at approximately 7pm in the evening, the complainant handed a joint signed letter to Mr. NW, one of the bar managers to pass on to Mr. YN, one of the company directors. The letter outlined a number of requests including a written statement of employment, to be placed on a band of weekly working hours and for a copy of the company handbook and grievance procedures. The letter was signed by the complainant and several of his work colleagues. Additional letters were enclosed with the joint signed letter. The additional letters were template letters signed by individual workers requesting that their employer place them on a band of weekly working hours. These letters also contained the Mandate Trade Union logo at the bottom. Mr. NW looked at the letter and told the complainant that he would get it to Mr. YN and get back him. Mr. YN arrived in the bar approximately one hour later, which according to the complainant would be very rare for him to come in at that time. The complainant claims that he saw Mr. YN having several conversations that evening with Mr. NW and Mr. LG, another bar manager. The complainant also claims that two other senior bar staff members, Ms. NC and Mr. NW, both who had signed the joint letter to the employer, were called into a meeting in the office later that evening with Mr. YN and Mr. ND, another company director. The complainant also claims that later that night during their routine 15 minute break which occurs after the bar closes to the public Mr. LG (Bar manager) stated to the staff gathered, “If people want to resign, I’ll give you a hug and a reference.”
On Saturday, April 6th at 6:30pm, 30 minutes after the complainant’s shift began, Mr. LG (Bar manager) asked the complainant to come up to the office for a minute. The complainant asked if he could bring a colleague with him and he asked his work colleague, Mr. LN, to accompany him into the office. In the office waiting was Mr. YN (Company Director), Mr. ND (Company Director), Mr. LG (Bar manager), Mr. NA (Bar manager). The complainant was then shown CCTV footage of him in the back bar area after work in the early hours of Saturday the 30th of March 2019 pouring some pints of beer and handing them to other members of staff. Mr. ND queried if the complainant had taken payment for these pints. The complainant explained that the till in the back bar area is non -functioning after work and that it is accepted custom and practice that staff pay themselves for any pints taken after work at the front till. The complainant explained that all other staff including the bar managers follow the same practice. The complainant also produced a receipt for payment of his own drink. Mr. ND did not accept the complainant’s explanation and told the complainant that he was in effect stealing from company and that he was responsible for all of the bar’s stock waste that week. Mr. YN stated to him, “Do you want me to ring the Guards?” Mr. ND then said to him, “This is gross misconduct. Get out. Get your things. You’re fired.” The complainant claims that the meeting lasted no longer then 5-10 minutes.
The complainant was sent a letter from his employer on the 12th of April outlining their reasons for his termination of employment citing gross misconduct.
Complaint seeking adjudication under Section 7 the Terms of Employment (Information) Act, 1994 – Terms of Employment
The complainant claims that his employer failed to provide him with a statement in writing of his terms of employment at any stage of his employment.
According to Section 3 of the Terms of Employment (Information Act, 1994)
3.— (1) An employer shall, not later than 2 months 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…
The complainant is asking that you consider compensation up to the maximum limits allowable under the Act.
Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977 to 2015
The complainant’s claim is that he was unfairly dismissed by his employer for trade union membership and activity. The complainant is seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977 to 2015 and is seeking compensation as redress.
According to Section 6 of the Unfair Dismissals Act, 1977 to 2015:
(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,
Less than 24 hours after the complainant personally handed in a letter on his and his colleagues’ behalf to his employer outlining their issues and requests to be placed on a band of weekly working hours, he was summarily dismissed by his employer for alleged gross misconduct regarding an incident which occurred a full seven days previously.
The employer would have been aware that the complainant was a member of Mandate Trade Union. The individual letters submitted to the employer with the request to be place on a band of weekly working hours had the Mandate Trade Union logo and name clearly printed on them. This would have been seen by the employer before the allegations of serious misconduct were raised the following day.
The complainant believes that he was dismissed by his employer in order to be made an example of in order to discourage any further trade union activity in the business.
In addition, the complainant did not receive notice of procedure for, and grounds of, dismissal as is Required by Section 14 of the Act which states-
14.— (1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.
The employer failed to follow fair procedures and the rules of natural justice in respect to the alleged incident of the complainant’s gross misconduct and summary dismissal. He did not receive a full and objective investigation and hearing into the allegations against him. He was not given the opportunity for appeal.
Should The complainant’s complaint be judged to be well founded, he is asking that in determining the amount of compensation payable that you may take regard to what is just and equitable particularly the extent of the employer’s reported flagrant breaches of his rights.
Section 7(1)(c) of the Unfair Dismissals Act states that compensation is to be “just and equitable having regard to all the circumstances.” Furthermore section 7(2)(a) states that “in determining the amount of compensation payable under that subsection regard shall be had to-
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14
Summary of Respondent’s Case:
On the night of the 29th of March, 2019 the complainant was working behind the bar after hours. He was observed on CCTV serving alcohol to several individuals, some of whom where employees of the respondent and some of whom were not. He served approximately 31 pints, which were not paid for.
The respondent had viewed the CCTV during to its own investigation in relation to inaccuracies in their stocktake. The respondent had been reviewing the CCTV for a number of weeks prior to inviting the complainant to a disciplinary meeting. Prior to that meeting the complainant was unaware that the respondent was carrying out its own stocktake investigation. He was invited to the meeting told what the issues wear and was invited to bring a colleague with him. The complainant was invited to view the CCTV during that meeting. The complainant stated that he had paid for his own drinks and produced two receipts. The receipts that he produced were not for the night in question. He then stated that the till at the bar where he was working was not turned on at the time. The respondent explained to the complainant that they were down approximately €440 for the current stock take and €1,000 for the stock take before that. Based on the CCTV evidence it was decided to dismiss the complaint for gross misconduct.
The complainant’s dismissal had nothing to do with him being a member of a Union. The investigation in relation to the stock take issue had commenced weeks prior to the complainant handing in the Union letter.
Findings and Conclusions:
The complainant states that he was not given his terms and conditions of employment in writing. Based on the evidence adduced by both parties I am satisfied that the respondent failed in its obligation pursuant to Section 3 of Act. Accordingly, I find that the complaint is well founded, and I award the complainant € 640.00
The complainant does not have the service required to bring a claim under the Unfair Dismissal Acts. However, the complainant alleges that he was dismissed due to his Trade Union activity and therefore pursuant to Section 6 (2) (a) I do have jurisdiction to entertain the complaint.
I am satisfied that the complainant’s dismissal had nothing to do with his trade Union activity. The stocktake investigation had commenced weeks before he handed in his Trade Union letter. Furthermore, several other employees were named in the Trade Union letter and their employment was not terminated. I find that I do not have jurisdiction to hearing the within complaint.
The complaint fails.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded. I award the complainant € 640.00
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The complaint fails.