Complainant

Respondent

Parties

Nabil  Djelladj

SRM Book and Cook Limited

Representatives

  Self

 Brian Montague

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-00067967-001

09/12/2024

The Complainant made a single claim:

A claim pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended).  

Dismissal was in dispute.

The Respondent is part of the Winding Stair Group, Claremont Newclud Limited. The Complainant was employed by the Respondent as a chef from the 22nd of May 2022 until he was allegedly dismissed, on the 4th of July 2024. The Respondent denied that it had dismissed the Complainant as alleged or at all.

In a WRC Complaint Form Received by the WRC on 9th of December 2024, the Complainant made the following submission:

On the 4th of July 2024 I went into work as normal. Myself and the head chef Paul and the second chef Raju, were all working together. Luke, another chef was there also. we did a normal service as usual. Paul asked if I could to go outside with him for a chat. Raju came too. Paul told me that things were not working and that he was firing me. I asked him twice to confirm that he was firing me. he said he was. I did this to ensure that he was actually firing me then and there. I then got my things from my locker and left.

An hour or two later, Paul messaged into the group work WhatsApp, confirming that I was no longer working there.

Later that day, I asked for Paul to send me a reference as I needed it to get another job and also in case I needed to apply for temporary social welfare payments. he confirmed that he would send this onto me. he then deleted these messages. (as shown in attached documents).

After a few days I received calls from Rowen (the executive chef) asking me for a meeting regarding work. I said I didn't understand why he wanted to meet with me regarding work, as I no longer worked there due to Paul having previously fired me - information that was also passed onto to all the rest of the staff.

At this point, I was feeling very stressed about the situation. I had no job and no way to pay my rent. I also had no way of claiming social welfare as Paul hadn't sent me the reference letter. I went to the doctor who gave me a prescription for medication to help me sleep and for anxiety.

I received an email from Elaine in the head office who wanted to speak to me as she said I wasn't fired, and Paul had no authority to fire me. Especially as I had not received no warnings, verbal or otherwise as is laid out in my contract.

I then received a text stating my rostered hours for the following weeks.This was very confusing as at this point I didn't know if I was still employed by The Woollen Mills or not. I was very stressed by the whole situation, I was also informed by one of my colleagues, who is also my friend, who when he asked why my name was on the roster after I was fired, was told by Paul not to say anything and not to mention me.

As I could no longer pay my rent, I went to Algeria to try to decide what to do. whilst there, I received a call about another job that also included accommodation. I decided to accept the job which is where I am not (sic.- see note below) currently working.

[Note the final sentence was intended to read: “I decided to accept the job which is where I am currently working”]

The Respondent provided a written submission which stated as follows:

We deny that Nabil Djelladj was dismissed from our employment and indeed will demonstrate that he was formally informed, including by email from a Director of the company, that he was not dismissed.

The key facts are;

1. Nabil was sent home early from his shift on the 4th of July 2024 by his manager, the Head Chef,

as a result of his poor performance which was affecting customer service.

2. The manager subsequently sent an internal WhatsApp message to his team informing them that

Nabil was leaving the business and wishing him well. The manager had no authority to do this, it was not authorized and not in line with our disciplinary policy.

3. When senior management became aware of this, they immediately made repeated attempts to

contact Nabil to confirm to him that he had not been dismissed and that he was to be rostered as

normal. He was invited to a meeting by the Executive Chef, Rowen Babe, on the 6th of July 2024, 14:03 (email attached) to discuss the matter. He refused to attend that meeting.

4. We will provide evidence of multiple attempts to contact Nabil by a series of Managers including

the Executive Chef and the Director. He did not respond to those attempts since his last email on the

8th of July 2024.

5. A Director of the company, Elaine Murphy, made a call to him on the 11th of July 2024 in which

she reassured him that he had not been dismissed, that he was rostered as normal, and that she would meet him to discuss the matter further. She followed up on that conversation with an email (11th of July 2024; 12:45, attached), again confirming that he had not been dismissed and that he remained a ‘valued employee’.

6. Nabil was due to attend for his shift on the 9th of July 2024. He did not attend and again despite

numerous attempts to contact him, he did not respond.

7. In regard to the meeting on 04/07/24 we will present Raju Sigdel, Senior Chef, who was in

attendance at the meeting, who will testify that Paul McGovern, Head Chef, did not inform Nabil that he was 'sacked'. He will further testify that when Nabil asked Paul was he 'sacked' Paul replied 'No'

8. Performance issues. Paul McGovern called a meeting with Nabil on 19/06/24 attended by

Paulo Vigeta (Senior Sous Chef) to raise concerns with Nabil in regard to his performance. Paulo Vigeta will appear as witness at the hearing to testify that the meeting took place and that a number of concerns were raised with Nabil regarding his performance including his lack of quality performance, seems disinterested in his role, easily distracted during morning shifts causing him not to be ready for the service ahead, not getting his section set up for the day ahead, watching football on his phone during services, leaving section without letting senior chefs know where he is during service, still not knowing what goes on each dish after extensive training, working in a mess and not doing haccp. This speaks to the background to events leading up to the events of 4/07/24. We are not in the practice of summarily dismissal and none of our managers have the authority to do so.

We have a very clear process as outlined in the Staff Handbook. Whereas we accept that the Head Chef had overstepped his authority in communicating that Nabil had left the business it is evident that we took immediate steps to correct that. Nabil simply refused to accept that.

It should be noted;

• Our disciplinary process is clearly stated in our Staff Handbook and requires a formal investigation and hearing. Dismissal, when it rarely does occur, is supported by a formal letter and outlines the right of appeal. Nabil was aware of the Staff Handbook (signed contract attached from 2022, noting above his signature that he received the Staff Handbook, an updated version of the Staff Handbook was emailed 23.2.2024. Staff Handbook 2024 is attached).

• It is essential that employees exhaust all internal processes open to them before seeking external

redress. If Nabil had genuinely believed he had been dismissed then he had an obligation to invoke the appeal process prior to referring to the WRC. He didn’t do so because he was clearly made aware that he had not been dismissed.

• It is evident that Nabil was not dismissed and therefore his claim for Unfair Dismissal is untrue

and incorrect. He abandoned his position and therefore the only claim he would be entitled to lodge with the WRC would be Constructive Dismissal. We will seek clarification at the hearing as to why he did not use the appropriate mechanism and why the matter is being heard as Unfair Dismissal.

We will challenge this claim for unfair dismissal and produce clear evidence and witnesses to demonstrate that the initial misstep by the line manager Paul McGovern (Head Chef), which did not as Nabil claims include that he was 'sacked', was immediately and comprehensively corrected and that Nabil could not have been reasonably left in any doubt that he was not dismissed and was to return to work as normal as well as given the opportunity to meet with Senior Management to discuss the matter. We can’t speculate as to why Nabil ignored such clear reassurance or chose to seek third-party redress without exhausting the internal processes available to him but it is clear that he was not dismissed and that he in effect abandoned service. It should be noted however that the ability to claim benefit on leaving employment is dependent on the reason of departure, being dismissal or resignation.

Unfair Dismissal

Statutory Provisions

Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:

Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.

Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

In the present case, dismissal was in dispute The dismissal is deemed unfair pursuant to Section 6 (1) unless the Respondent can show “substantial grounds” justifying the dismissal. In this case the Respondent denied that the Complainant was dismissed.

The Complainant gave evidence on affirmation. He described how he had a conversation with the Head Chef, Mr. Paul McGovern on the street outside the business premises of the Respondent in the early afternoon of the 4th of July 2024. Also present was another Chef employed by the Respondent, Mr. Raju Sigdel. Mr. McGovern said to the Complainant: “I think things are not working”. The Complainant said “Paul, are you firing me?” Mr. McGovern said “Yes”. The Complainant repeated his question to ensure that he had understood Mr. McGovern correctly and he clearly understood that he was being fired. He went back inside the Respondent’s premises, where he spoke to a colleague, Luke. He said thanks to this colleague and told him that he (the Complainant) had been fired. He collected his personal items and left. Later that day the Complainant texted Mr. McGovern asking for a reference and a letter for social welfare. Although this text was later deleted, the complainant said that Mr. McGovern did text him and said he would do as he had been asked. The Complainant then sent his email address to Mr. McGovern and Mr. McGovern texted him back and gave him the name of a person or agency who might give him a job. An hour or two later the Complainant saw a posting on a WhatsApp group to which he and other members of staff then had access. The message posted read as follows:

“Nabil has finished up with us today and I want to take this opportunity to wish him very well in the future.

Nabil you are always welcome in the woolen mills and hope to see you soon.

Best of luck and thanks for everything”

When he received further contact subsequently from other individuals in the Respondent the Complainant said that he felt that he couldn’t go back, that his pride and feelings were hurt. The whole restaurant knew about the situation. He said that he thought that Mr. McGovern would do everything that he could to fire him again.

It was put to the Complainant that Mr. Sigdel would say that Mr. McGivern did not tell the Complainant that he was fired. The Complainant reiterated his evidence that he was twice told by Mr. McGovern that he was fired.

It was further put to the Complainant that the Respondent’s Executive Chef Mr. Rowen Babe, emailed the Complainant on the 6th of July 2024 to invite him to discuss the meeting with Mr. McGovern in more detail and stating that Mr. McGovern “wanted to meet [the Complainant] in regards to [his] performance in work” and that the Complainant was rostered to work. The Complainant referred to his response to that email which he sent on the 8th of July 2024 which stated that Mr. McGovern twice told him that he was fired and that due to that, he was unsure why the Executive Chef wanted to speak to him about his performance. The Complainant said that at that point, given the way Mr. McGovern had treated him, he no longer trusted the company and he took the view that the Respondent intended to fire him again if he went back.

An email from Ms. Elaine Murphy, General Manager and a Director of the Respondent, to the Complainant dated the 11th of July 2024, was put to the Complainant.  This email stated as follows:

“Hi Nabil

Thank you for returning my call. It was good to speak to you.

While I know this has been difficult, let me just clearly reiterate what I said to you during our phone conversation today. You are still very much employed in our company and have NOT been fired. I hope you take this opportunity (as I just discussed with you) to meet me and/or [the Executive Chef] with a suitable time and date to discuss your concerns and future options but, for now. please do text or call myself or [the Executive Chef] with a suitable time and date to meet us and also with any requests for your next roster. I hope I have clarified for you that you are still a valued employee of ours and am looking forward to seeing you in person to further reassure you of this.

Warm regards

Elaine Murphy

Founder-Director”

It was put to the Complainant that on the 11th of July 2024 he received an email from Ms. Elaine Murphy, General Manager and a Director of the Respondent which clearly stated that he was still very much employed and had not been fired. The Complainant said that he did not trust the Respondent. He formed the view that Ms. Murphy realised that Mr. McGovern had “messed up” and she was trying to protect the Respondent from a claim. It was put to the Complainant that even if he did think that he was dismissed he should have appealed any such perceived dismissal using the Respondent’s internal procedures. The Complainant reiterated that he did not trust the Respondent and that the Respondent had fired him without any procedures. The Complainant denied that he abandoned his position.

Mr. Raju Sigdel gave evidence on affirmation. He was and remains employed as a chef by the Respondent. He was present outside the Respondent’s business premises in the early afternoon of the 4th of July 2024 along with the Complainant and Mr. McGovern when the conversation deposed to by the Complainant took place. He did not say anything during the conversation. The witness said that Mr. McGovern talked about what had gone on in the kitchen. He talked about the Complainant’s performance. He said that the Complainant had to improve, that everybody else was improving a lot. The Complainant said that he was improving. The Complainant asked “Am I sacked? Mr. McGovern said “No, you are not sacked”. The Complainant asked this question two or three times and each time Mr. McGovern said “No”. The witness said that Mr. McGovern was trying to get the Complainant to improve. The Complainant challenged the totality of this evidence. The Complainant also denied the suggestion that Mr. McGivern said that he could go home early.

I ascertained from the Complainant that when he was originally hired, he met one of the front-of- house managers and he then did a trial with the then Head Chef who was Mr. McGovern’s predecessor. The Respondent confirmed that the previous Head Chef had given the final sanction for the Complainant to be hired.

Findings in relation to dismissal.

Mr. McGovern did not give evidence. The only evidence offered by the Respondent was that of Mr. Sigdel which was in direct conflict with the evidence of the Complainant. I have carefully examined the circumstances immediately following the conversation outside the premises. It was not disputed that the Complainant left the premises and that he told a colleague that he had been fired. The Complainant’s evidence regarding the WhatsApp posting announcing that the Complainant had “finished up” was not explained either by Mr. Sigdel or in the Respondent’s submissions before or during the hearing.  A plain reading of this message indicates that its author, Mr. McGovern was stating that the Complainant’s employment had come to an end. This is not consistent with the contention that he was merely allowed to leave work early that day. No explanation was offered by Mr. Sigdel, by Mr. McGovern (who did not give evidence) or by the Respondent as to how it came to pass that a group message was posted by Mr. McGovern stating that the Complainant “finished up with us today”. Given that the Complainant left work immediately after the conversation with Mr. McGovern it seems very unlikely that he was in any doubt that he had been dismissed. Moreover, any doubt that he may have had would have been dispelled completely by the group message posting by Mr. McGovern his immediate superior confirming that he had “finished up with us today”.  The Respondent’s contention both in submissions and elicited from Mr. Sigdel by a question from the Respondent’s representative, that the Complainant was “allowed to leave work early” is completely at odds with the message posted by Mr. McGovern that day and I am satisfied that this is not what occurred.

In its written submission the Respondent stated: “Whereas we accept that the Head Chef had overstepped his authority in communicating that Nabil had left the business it is evident that we took immediate steps to correct that. Nabil simply refused to accept that”. The extent of the authority of the Head Chef was not a matter which the Complainant could reasonably be expected to understand. In circumstances where the previous Head Chef had the ultimate say in the Complainant’s initial hiring, I find that even if there was any lack of clarity as regards what was said between the Complainant and the Head Chef outside the premises on the 4th of July 2024, it was reasonable for the Complainant to understand that a statement made on a group platform by the Head Chef, his immediate superior, that he had “finished up”, clearly indicated that this individual considered his employment with the Respondent to have ended that day.

Taking all of the foregoing circumstances into account, I am satisfied on the balance of probability that the Complainant was dismissed by the Head Chef on the 4th of July 2024.

I turn now to consider the second issue raised by the Respondent which was that the Complainant unreasonably refused to engage with the Respondent when two senior managers above the Head Chef in the Respondent’s chain of command, attempted to engage with him to address the issue created by the actions of the Head Chef. This issue which in many ways mirrors a different situation where, instead of being dismissed an employee resigns in the “heat of the moment”. It is well established that in certain circumstances, an employee who does so should be allowed to retract his/her resignation, and to accept it without allowing him to do so can in certain circumstances constitute an unfair dismissal. It is not necessary for me to consider whether in principle, a “heat of the moment dismissal” if such it can be described is legally capable of being retracted because in the present case, I find that there was no immediate attempt to retract it at all.

A reading of the distribution list on the posting by Mr. McGovern on the 4th of July 2024, reveals that a number of individuals are named as members of the chat group and “+35…” suggests that there were 35 other members of that group not named. Significantly, the Executive Head Chef is one of those named. He was the first person, senior to the Head Chef, who emailed the Complainant. He did so two days after the Complainant’s departure but his email to the Complainant did not clarify that the Complainant had not been dismissed even though it could certainly have done so.

The next person to contact the Complainant was Ms. Murphy in her capacity as General Manager and a Director of the Respondent. Her email to the Complainant did purport to clarify that he had not been dismissed. However, a week had passed since the departure of the Complainant before any such clarity was offered to him.

In all of the circumstances I am satisfied that it was reasonable for the Complainant to effectively accept the fact that he had been dismissed following the group posting on the 4th of July 2024 and given that no effort was made to retrieve the situation immediately and with absolute clarity, it was not unreasonable for him to lose trust in his employer and to decline to engage further. 

I find that the Complainant was dismissed and in the absence of any grounds being advanced by the Respondent to justify it, that dismissal is deemed unfair pursuant to Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015.

Redress for Unfair Dismissal

The Complainant found alternative employment following the dismissal and sought compensation as his preferred remedy. The Respondent contended that the Complainant was never dismissed and that his position was therefore still open to him. Based on the fact that alternative employment has been secured, I deem compensation to be the most appropriate remedy.

The parties agreed at the hearing that the Complainant’s weekly wage was €640 gross.

The Complainant said that after he was dismissed, he relinquished his rented accommodation in Dublin and return to Algeria, his native country. He spent about four weeks there but during that time he was actively seeking employment by reaching out to his personal contacts in Ireland. He secured alternative employment in Ireland, and he started this employment on the 4th of October 2024. He still holds this position and his remuneration in this employment exceeds that which he was earning with the Respondent. It was put to the Complainant that he did not need to vacate his rented accommodation and return to Algeria, that he could have negotiated with his landlord.

I am satisfied from the Complainant’s evidence that he made reasonable efforts to mitigate his loss as evidenced by his success in securing employment within a relatively short period of time at a higher rate of pay than he had enjoyed with the Respondent.

I make an award of compensation for unfair dismissal to the Complainant in the sum of €8,320 representing thirteen weeks’ remuneration at the rate of €640 per week and the Respondent is directed to pay the said sum to the Complainant.  

CA-00067967-001

The Complainant was unfairly dismissed. The Respondent is directed to pay to the Complainant the sum of €8,320 by way of compensation for unfair dismissal.

Unfair Dismissal – Unfair Dismissals Acts 1977 – 2015: Sections 6 (1) and 6 (6) – Dismissal in Dispute