Complainant

Respondent

Parties

Patrick  Roche

Enniscoffey Bar & Grill Limited

Representatives

Conor Mc Crave, Setanta Solicitors

Mr Pawelkudrcki

Act

Complaint Reference No.

Date of Receipt

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

CA-00068143-001

16/12/2024

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

CA-00068143-002

16/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00068143-003

16/12/2024

The complainant, Mr Roche, was employed as a Commis Chef earning €324 (24hrs) per week. He claims he was unfairly dismissed when his employment was terminated after six weeks in employment. He claims he was dismissed due to having made a protected disclosure.

He claims that he was penalised under the Safety, Health & Welfare at Work Act 2005, having made a complaint and then having his employment terminated.

He further claims that he did not receive a statement of his terms of employment, in accordance with the Terms of Employment (Information) Act, 1994.

The respondent denies the unfair dismissal and penalisation complaint although accepts that the terms of employment were not issued to the complainant.

Summary of Complainant’s Evidence

Mr Roche said that he commenced work as a Commis Chef on 3rd September 2024, having completed a trial. He worked on the carvery and also cooked breakfast. He had a level 5 qualification and had completed his HACCP training.

He said he made several food hygiene complaints to his supervisor. As the issues were not resolved, he made a complaint to the Food Safety Authority. He said he also raised issues with colleagues on food hygiene. Even though he was not in a supervisory role, he felt that due to his training there was an onus on him to raise any bad practice with staff directly.

He said that a week after he made the complaint to the Food Safety Authority, there was an inspection.

Several days afterwards, he received a phone call from Ms Hall, Operations Manager, who informed him that his employment was terminated due to a downturn in business. He received a letter stating that if business picked up, he would be contacted.

He said he took this at face value until he saw the respondent advertising for staff on social media. He then sought legal advice, as he thought it was too much of a co-incidence that he had reported to the Food Safety Authority and then had his employment terminated shortly afterwards. He said he had never been advised of performance/conduct issues although he outlined that he was given money by his supervisor to buy a new t-shirt on one occasion. He outlined that there was also a minor issue with a customer on one occasion.

He said that he had not been able to find work since his dismissal although he was hopeful of finding a job soon.

Under cross-examination by the respondent representative, he was asked how they would have known about a complaint to the Food Safety Authority when complaints are anonymous. It was put to him that the respondent only became aware of the complaint when they received a letter from his solicitor in November 2024. He replied that he did not know how they became aware.

Under re-examination by his representative, he confirmed that he had raised food hygiene issues with his line manager.

Summary of Mr Pawelkudrcki’s Evidence

Mr Pawelkudrcki gave testimony that he was aware from the complainant’s sister that he was seeking work. He was given the job and things ran smoothly until there was an issue with his uniform. There were also other issues that arose with staff. He outlined the circumstances of the t-shirt issue and also how the complainant interacted with a customer on one occasion. He said there were regular inspections and the staff were making changes as per the advice received. He said that the downturn in business, and complaints from staff were the reasons why he asked the Operations Manager to let him go.

Under cross-examination, he was asked whether a contract issued and how the complainant was made aware of the procedure to make complaints within his employment. He confirmed that a contract did not issue. He said the performance/conduct issues were not included in the termination letter. He said if the complainant did raise food hygiene issues with his supervisor that these were not passed on. He said the staff were aware of improvements to be made from previous inspections and these were being worked on.

He was asked about performance/conduct issues outlined in the letter of 19th November 2024 from the Operations Manager, and whether these were notified to the complainant during his employment. He replied that he did not want to raise these issues with the complainant as he was a nice guy and did not want him to feel bad. He said the performance/conduct issues were not included in the termination letter for this reason. He said that there were financial pressures on the business and his priority was to keep the business going.

He was asked about new staff being taken on subsequent to the complainant’s termination. He replied that staff were constantly moving between restaurants.

Summary of Ms Hall’s Evidence

Ms Hall outlined her role as Operations Manager. Although she was not on site, she said the complainant could have raised any issues with her. Although he did have a line manager, there were changes to staffing and this was why his contract of employment was not issued. There were regular inspections so herself and other staff were aware of the improvements required. She said that some staff were taken on over the Christmas period. It was not considered appropriate to offer the complainant work after they received his solicitor’s letter.

Under cross-examination, she was asked about the dates of inspections and why there were no reports submitted to the WRC for verification. She replied that she was not requested to bring the reports.  She was asked why they were taking on staff in circumstances when they had just let go of the complainant with a commitment to bring him back if there was more work. She replied that other staff had left and they needed floor staff and not a chef.

CA-00068143-001- Unfair Dismissal Complaint

The Law

The Protected Disclosure Act 2014 amended the Unfair Dismissals Act to include employees who had not attained 52 weeks service. Under section 6 (2) of the Unfair Dismissals Act it states that ‘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,

Finding

The complainant was not issued with a contract so he was unaware of any procedure on reporting complaints within his workplace. He said he reported food hygiene issues to his line manager and then to the Food Safety Authority. The respondent does not deny that a protected disclosure was made although submitted in testimony that they were not aware of it until they received the solicitor’s letter after the dismissal.  

I decide that the complainant had made a protected disclosure in accordance with the Act.

Therefore, the issue to be decided is whether the dismissal arose wholly or mainly from the employee having made the protected disclosure. The letter of 16th October 2024 from the respondent outlined the reason for termination as;

‘Due to a substantially lower customer footfall and less income/turnover than expected…..’.

In the response letter of 19th November 2024 to the complainant’s solicitor, there were a series of performance/conduct issues outlined. This letter did not refer to the earlier reason for the dismissal although this may be due to the fact that it was a reply to the issues raised by his solicitor.

Although there is a conflict in evidence, the complainant could potentially have been dismissed wholly or mainly for the three following reasons:

·        A downturn in business.

·        Performance/conduct issues.

·        For making a protected disclosure.

An advertisement for new staff was put into evidence by the complainant and he said that this triggered that he may have been dismissed due to having made a protected disclosure. The respondent said the reason given for not contacting the complainant was that it was floor staff taken on and not a chef. Also, it was submitted that after receiving the solicitors letter it would not have been appropriate to offer him work.

There is a conflict in evidence as to the reason for dismissal. In reviewing the documentation along with the testimony at the hearing, there is an inconsistency with the respondent’s position. One letter points to a downturn in business and the other refers to performance/conduct issues. As there was no contemporaneous correspondence of performance/conduct issues during his employment, I find this reason unconvincing.

There is also an inconsistency with a downturn in business and then the respondent advertising for staff. It is also unconvincing that the food hygiene issues raised with his line manager were not passed on to management yet there are detailed accounts of the complainant’s alleged previous actions (letter of 19th November 2024, responding back to his solicitor). As the Operations Manager was not on site, it was also likely that his line manger would have put management on notice of the food hygiene complaints.

On balance, and for the reasons outlined, I find the complainant was dismissed for having made a protected disclosure.

I find that the complainant was unfairly dismissed.

Redress

The complainant gave testimony and provided some evidence of his attempts to find employment since the dismissal. He has not found work. He said he was hopeful of obtaining work in the near future.

I decide that the respondent shall pay to the complainant €5,184 which is the equivalent of 4-months’ salary.  

CA-00068143-002- Terms of Employment Complaint

The respondent representatives have accepted that the complainant did not receive his terms and conditions of employment, as per the Act.

I find this complaint well founded.

As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable not exceeding 4 weeks’ remuneration.

Even though the respondent representatives said that his terms were not issued due to a changeover of staff, I consider the breach to be quite serious, as the complainant was left in a precarious situation with no written confirmation of his terms of employment.

I order the employer pay to the employee the equivalent of 3 weeks’ pay which is €972. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00068143-003- Penalisation Complaint

The complaint of penalisation under the Safety, Health & Welfare at Work Act, 2005 is the same as the complaint under the Unfair Dismissals Act, as the penalisation suffered by the complainant was his dismissal. As this is a parallel complaint and has been dealt with under the above unfair dismissal decision, I can award no further redress for the same penalisation.

I find the complaint not well founded.

CA-00068143-001- Unfair Dismissal Complaint

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant €5,184 which is the equivalent of 4-months’ salary. 

CA-00068143-002- Terms of Employment Complaint

I find that the complaint is well founded. I order the employer pay to the employee the equivalent of 3 weeks’ pay which is €972. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00068143-003- Penalisation Complaint

As the penalisation suffered by the complainant was his dismissal, I decide that this is a parallel complaint and has been dealt with under the above unfair dismissal decision.

I find the complaint not well founded.

Unfair Dismissal, Terms of Employment