Complainant

Respondent

Parties

Dorin  Burlacu

James White & Company Unlimited Company t/a The King Thomond Hotel (Amended on consent)

Representatives

  Self-Represented

Campbell International Human Resource Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00064701-001

10/07/2024

The Complainant gave evidence on affirmation. The Complainant’s wife and fellow employee, Konsuela Daradics of the Complainant also gave evidence on affirmation.

The Respondent was represented at the hearing. Ms Megan White, the General Manager, gave evidence on affirmation. Olivia Bane, who performed an HR function within the Respondent, gave evidence on affirmation. Nnabuike Nneji gave evidence on affirmation, as did Jose Menezes.

The correct the name of the Respondent Company was clarified at the outset of the hearing.

The date the Complainant commenced employment was 28 November 2023 as per the contract of employment.

The complaint was heard together with ADJ-00053077.

The Complainant was employed as a Night Porter in the Respondent Hotel, The King Thomond Hotel which was used as accommodation to host International Protection Applicants and/or Temporary Protection Residents.

It was the Complainant’s claim that he was constructively dismissed following the raising of a protected disclosure. He gave evidence that he received notice on 6 July 2024, and that his employment ended on 7 July 2024. He confirmed that he earned a gross weekly wage of €431.80.

The Complainant stated that he had made two complaints to Ms Bane regarding incidents of food poisoning. He said that the Respondent was aware of a rat infestation and that approximately 250 people were eating in the hotel. He made a protected disclosure to the Food Safety Authority of Ireland (FSAI) and the Health Information and Quality Authority (HIQA). Following this disclosure, he claimed that his employment was terminated, and his belongings were returned to him in a black bag.

He stated that he was dismissed without any disciplinary process being followed and that the disciplinary procedure, which included five stages, was not adhered to. He claimed no fair procedures were followed.

Under cross-examination, the Complainant was asked when the food poisoning incidents occurred. He responded that he could not remember the exact dates because he had been vomiting at the time. It was put to him that his claim was for constructive dismissal. He was asked whether he had returned to work after the food poisoning incident and eaten the food again. The Complainant confirmed that he had, stating, “I was paying for the food.” When asked if he had ever refused to pay, he said he was not aware that it was possible to do so and that it was not set out in his contract.

It was put to him that he had continued to eat at the Respondent’s hotel up to three times a day. The Complainant denied this, stating that he did not eat there three times a day and did not expect to get food poisoning or to be served expired food, such as bread past its expiry date.

Upon inquiry, when asked whether there were complaints from the other 250 guests regarding food poisoning, the Complainant said he did not know if they all became ill but claimed they were afraid to speak up and did not complain. He was asked if he ever brought his own food to work, which he confirmed. He was then asked whether it was possible that he had contracted food poisoning from his own food, to which he replied, “No, not at all.”

The Complainant confirmed that he did not seek medical assistance and was not paid for sick leave, despite having taken two separate days off due to illness. He was given another opportunity to specify when he made his complaints, and he stated, “I would say April and May 2024.”

For the sake of clarity, the Complainant was asked whether he accepted that he was dismissed or whether it was his case that he had resigned by email of 2 July 2024 with an end date of 10 August 2024. He confirmed that it was his evidence that he had been dismissed.

Ms Olivia Bane gave evidence on behalf of the Respondent. She stated that the Complainant had been subject to a disciplinary matter relating to the recording of CCTV footage, but at that stage, no issue had been raised regarding food poisoning.

It was her evidence that a couple of months later, the Complainant mentioned that the lamb was not cooked properly. She agreed to speak to the chefs but was not aware that the Complainant had become ill as a result. She stated the Complainant had been dismissed for gross misconduct for recording confidential company information.

Ms Bane was cross-examined by the Complainant and asked why she was lying. Ms Bane denied that she was.

Upon inquiry, Ms Bane was asked whether the Complainant had been dismissed or had resigned. It was her evidence that he was dismissed on 7 July 2024.

Mr Menezes, a Night Porter, gave evidence that the Complainant had asked whether he had any pictures of rats, stating he intended to send them to the Environmental Health Agency. When asked if he had any such photographs, it was the witness’s evidence that he did not, as no photographs existed.

Asked about the alleged food poisoning, he stated that the Complainant had called in sick on one occasion, from 6:00 to 7:00 PM, but he was not aware of anyone else becoming ill.

The witness was cross-examined and asked whether he was aware of the presence of rats. It was his evidence that he had caught mice himself, but after that instance, he did not find any more.

He was also asked if he was aware of any letters of complaint regarding food poisoning or poor food quality. It was Mr Menezes’s evidence that there were complaints regarding the quality of the food, but not specifically about food poisoning.

The next witness, Mr Nneji, gave evidence that he conducted the appeal of the Complainant’s dismissal. He worked in a different hotel and had been asked to carry out the appeal process as an independent person.

It was the witness’s evidence that during the appeal hearing on 8 August 2024, the Complainant admitted to having amended a document and to having viewed documents that were confidential. When asked under cross-examination where this admission was recorded, the witness stated that it was contained in the minutes of the meeting.

Preliminary Matter

The Complainant referred a complaint of constructive dismissal to the Workplace Relations Commission. However, a review of the narrative in the Complaint Form makes it clear that this is, in fact, a claim for Unfair Dismissal. The Complainant states in block capital letters that he was unfairly dismissed and refers to a protected disclosure, also in block capitals.

A dismissal letter from the Respondent dated 7 July 2024 expressly refers to the reporting of “fake Health and Safety issues” together with Ms Bane’s evidence in which she clearly stated he was dismissed for gross misconduct.

This is supported by a subsequent email from Ms White referencing the dismissal and noting that she had contacted the Health and Safety Inspector to refute the complaints. Both documents were included in the Respondent’s submission.

The Respondent’s own evidence confirms that the Complainant was dismissed on 7 July 2024 by the relevant witness. There was also direct evidence from the witness who conducted the appeal.

The Workplace Relations Commission Complaint Form is not a statutory document; it is intended to provide an outline of the complaints. In this case, the narrative clearly indicates that the Complainant is alleging unfair dismissal on the grounds of having made a protected disclosure. There was never any ambiguity around this complaint.  

Relying on the Supreme Court judgment in Louth/Meath ETB v. Equality Tribunal [2016] IESC 40, the Complaint Form is amended to a complaint of Unfair Dismissal.

Substantive Complaint

Protected Disclosures are defined in Section 5 of the Protected Disclosure Act 2014 (as amended) as :-

“5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or

The Complainant reported the presence of vermin in the King Thomond Hotel, black liquid flowing from the water fossil and food which he states had expired.

While the legislation requires only a “reasonable belief” on the part of the worker rather than proof of wrongdoing, it is worth clarifying that the reports and documentation regarding the absence of vermin relate to the Imperial Hotel, which is understood to be part of the Respondent’s company and also located in Lisdoonvarna, Co. Clare. However, the Complainant was employed solely at the King Thomond Hotel, and no evidence was presented to suggest otherwise.

There was unchallenged evidence of WhatsApp messages with a contact saved as the FSAI, dated 5–8 July 2024. In that exchange, the FSAI agent acknowledged that a protected disclosure had been made.

Having considered the evidence, I find that the Complainant had a reasonable belief that the information disclosed to the FSAI between 5–8 July 2024 constituted a protected disclosure of a wrongdoing under Section 5(3)(d) of the Act.

Unfair Dismissal

The next question to consider is if the Complainant was dismissed having made a protected disclosure.

Section 6 (2) of the Unfair Dismissal Act 1977 (as amended)

“(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:

(ba) the employee having made a protected disclosure,”

The Complainant gave evidence that he made a protected disclosure to the FSAI via WhatsApp messages dated from 5 July 2024 at 5.27am to 8 July 2024 at 09.12am. A separate disclosure to HIQA was acknowledged by letter dated 11 July 2024, with a referral date of 8 July 2024. HIQA stated the matter was outside its remit and referred it to the Protected Disclosures Commissioner.

The Complainant was suspended from employment on 5 July 2024 and invited to a disciplinary meeting by letter of the same date. The allegation in the letter was “copying company documents on video and making videos of our premises,” described as “serious issues” under GDPR.

Minutes from a meeting on 6 July 2024 at 2pm record a contentious exchange between the Complainant and Ms Bane, with no reference to any protected disclosure. A further meeting took place at 4pm on 7 July 2024, again chaired by Ms Bane. At the outset, there was reference to a complaint to a “health organisation regarding food” and the anticipated referral to “HIQA.”

I find that, as of 7 July 2024, the Respondent was on notice of the Complainant’s disclosures to the FSAI. At that meeting, Ms Bane made direct threats on two occasions, stating: “I told you we reserve the right to report the incidents to the Garda and data protection commission and bring a criminal case against you in this country or another country.”

The Complainant was handed a prepared dismissal letter, signed by Ms Bane, at the 7 July 2024 meeting. The letter stated: “our additional information has found the following information which includes threatening the company with made up H&S issues. A fellow employee has submitted a statement and text message from you about your intentions to damage the reputation of the company and its employees.” I find this confirms the Respondent was on notice of the disclosure at the time of dismissal.

The Complainant was dismissed with immediate effect on 7 July 2024. As the disclosure to HIQA occurred after the termination, it has not been considered for the purposes of this decision or under Section 5 of the Protected Disclosures Act 2014 (as amended).

For the avoidance of doubt, I do not accept the Respondent’s submission that the Complainant resigned. While the Complainant did send a resignation email on 2 July 2024 with an intended end date of 10 August 2024, I find that he remained employed until his dismissal on 7 July 2024. This is supported by Ms Bane’s own evidence and the dismissal correspondence.

Having regard to the evidence, I find that the Complainant made a protected disclosure on 5 July 2024 and, accordingly, is entitled to the protections of the Unfair Dismissals Act.

I find that the Complainant was unfairly dismissed.

Section 7 of the Unfair Dismissals Act 1977 (as amended) provides for redress where an employee is found to have been unfairly dismissed. In the circumstances of this case, particularly given the clear breakdown in the relationship between the parties I find that compensation is the most appropriate form of redress pursuant to Section 7(1)(c).

As no evidence was presented of the Complainant’s efforts to seek alternative employment following his dismissal, I am limited to awarding compensation under Section 7(1)(c)(ii), which provides:“(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

I find that the sum of €1,727.20 which represents 4 weeks renumeration as just and equitable having regard to all the circumstances.

Protected Disclosure – Unfair Dismissal