Complainant

Respondent

Parties

Barry  Colclough

Grange Mockler Holdings Ltd t/a Lanigan’s Bar

Representatives

Poe Kiely Hogan

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-00061009-001

07/01/2024

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

CA-00061009-002

07/01/2024

The Complainant was a Head Door Supervisor with the Respondent and commenced employment on 15 March 2013. He worked 12.5 hours per week and earned a gross sum of €250. It was his complaint, as set out in the complaint form submitted on 7 January 2024, that he was unfairly and constructively dismissed from his employment with the Respondent. He gave a sworn affirmation at the outset of the hearing.

On behalf of the Respondent, Mr. P.J. Lanigan, Director, gave evidence on affirmation. The Bar Manager, Mr. Ariful Alam, also gave evidence on affirmation at the hearing.

It was the Respondent’s case that the Complainant was not dismissed and remains on the Respondent’s payroll system.

It was the Complainant's evidence that in early 2016, he was promoted to Head Door Supervisor, where he managed staffing rosters and incident reports. He stated that he had a clean disciplinary record and had never had any issues at work until September 2023.

It was the Complainant's evidence that a new security company was hired by the Respondent, and despite being reassured by Mr Lanigan that he would remain as Head Door Supervisor, this was not the case.

It was his evidence that he sent three letters: one dated 24 October 2023, requesting a written statement outlining the reason for his dismissal and requiring a response within 14 days. Two further letters were sent on 24 January 2024 and 14 February 2024, but no response was received from the Respondent.

It was the Complainant's evidence that his last payday was 28 August 2023, and his last day of work was 15 September 2023. He has not received any communication from the Respondent since then, despite his attempts to contact him via Facebook, telephone, and text messages on WhatsApp.

Under cross-examination, the Complainant accepted that he had a great working relationship with the Respondent for 10 years. It was put to him that following a difficult weekend on 10- 11 September 2023, he approached Mr Lanigan seeking more door staff due to difficulties in recruiting for the team.

It was accepted that on 15 September 2023, two new door staff commenced work. However, by the following Monday, it was put to the Complainant that he was unhappy with this arrangement and asked for two weeks' leave to reflect on his position.

The Complainant's evidence was that he was not being treated with the respect expected of a Head Doorman. He stated that he was being bullied on the door and was directed to stand inside the door rather than at the front door. It was his evidence that the Head Doorman controls the door and decides who is allowed in.

It was not accepted that the Complainant called Mr Lanigan on the following Monday despite a pre-arranged call having been set.

It was put to the Complainant that attended the bar the following weekend and engaged in a heated altercation with both the old and new door staff. It was put to him that he was intoxicated, and this was the reason for refusing him entry. The Complainant acknowledged that a verbal altercation occurred and that the Gardaí, who were passing by, asked the parties to move along.

When asked if he had contacted the Respondent again, the Complainant's evidence was that he was waiting for the Respondent to contact him with his roster. He believed that another company was now supplying door staff and that he had been removed from the roster.

The Complainant's evidence was that he wrote to the Respondent following this, but did not receive a response.

Upon inquiry, he was asked about the meeting upstairs on the premises involving Mr Lanigan, Mr Alam, and the two new staff members who had been hired. The Complainant’s evidence was that this meeting took place on the first weekend that the latest security staff were present. He said he worked with the new staff the following weekend as requested. He confirmed no grievance was raised, but Mr Lanigan was aware.

In terms of his financial loss, the Complainant’s evidence was that he had sought employment and was successful in securing a new job on 29 March 2024, working five hours on a Friday and five hours on a Saturday at a rate of €20 per hour. He also stated that he provides cover if someone is sick or on annual leave.

The Respondent relied upon the following caselaw on the point of constructive dismissal; Valeo Foods (Ireland) -v- Tracey McElhinney (UDD1829), Mark Lowry v JJ Fleming and Company Limited (ADJ00036677), Waterford Senior Care Ltd & TabbUDD1938 (July 2019), McCormack v Dunnes Stores UD1421/2008, Duane v Masonry Fixed Services Ltd, 2016 and Jabczuga v Ryanair Ltd, UD66/2013.

Mr Lanigan gave evidence that in early September 2023, the Respondent needed additional security staff. He arranged for agency staff to work on the premises, with the Complainant continuing as Head Doorman. It was his evidence that, during that weekend, the Complainant expressed reservations about working with the two new security staff and requested two weeks off to consider his position.

It was also Mr Lanigan’s evidence that, during the year, the Complainant had previously expressed a desire to leave his role, stating that he was getting “too old” for the position.

On the night of 23 September 2023, it was Mr Lanigan’s evidence that the Complainant was allowed entry; however, when he saw the other individuals being refused, a verbal altercation ensued with the agency security staff.

Mr Lanigan denied that the Complainant spoke to him following this incident. He stated that he had expected an apology for what happened that night, during which one of the security staff was assaulted. He had no recollection of receiving any texts, phone calls, or WhatsApp messages, but was aware that the Complainant wished to continue working after his two-week break.

It was his evidence that he received the complaint from the Workplace Relations Commission by registered post but received no other communication. He explained that it was challenging to find staff in Kilkenny and that, as a result, securing alternative employment should be relatively easy.

Upon cross-examination, Mr Lanigan stated that the matter unfolded in a “sad” way. He confirmed that there had been a meeting between the Complainant and the new staff, during which the Complainant was reassured that he was "the top guy." It was put to Mr Lanigan that he should have “backed him”, to which he replied, "I don’t understand what happened," referencing a sit-down meeting that occurred prior to 15 September 2023 concerning the new arrangement.

When asked about the purpose of that meeting on 15 September 2023, Mr Lanigan stated it was an introductory meeting to introduce the new team to the Complainant. When asked again how he knew about the altercation, he said it was his understanding that the Complainant had contacted him during the weekend. They had discussed that the Complainant was taking two weeks off. From his perspective, it was a significant change for the Complainant, as the new staff were not employed directly by the Respondent.

Mr Lanigan denied blocking the Complainant’s phone number. He also denied dismissing him and stated explicitly that he did not dismiss him. Upon inquiry as to whether the Complainant would be welcomed back if he turned up for work, Mr Lanigan responded, "maybe." When asked if the Complainant was still employed, he confirmed that he was.

Upon further inquiry, Mr Lanigan was asked whether there was an employment contract and a grievance policy. It was his evidence that the Complainant had started working a long time ago and that, while he was provided with a contract, he had refused to sign it.

Mr Alam gave evidence that he had worked with the Respondent for the previous 14 years, and for the past three years as Bar Manager. It was his evidence that he had worked with the Complainant for a long time and had a good relationship with him.

Mr Alam stated that the Complainant usually put together the rosters. He confirmed the meeting between the Complainant and the new bouncers, noting that the Complainant did not appear happy at the meeting. Mr Alam advised him to take control of the door.

Over the course of Friday, 15 September, and Saturday, 16 September 2023, the Complainant approached Mr Alam a few times, stating that he was not happy with the arrangement. The Complainant drove the Bar Manager home after the premises closed at approximately 2:30 a.m. During this drive, the Complainant said, “this may be my last year.” They had a conversation in the car, during which the Complainant stated he was going to take two weeks off.

Mr Alam stated that he had heard the Complainant was dismissed and seemed happy to leave until he received the Complaint Form from the Workplace Relations Commission.

Mr Alam accepted that he received a long text message from the Complainant around 24 October 2023. He said he did not speak to Mr Lanigan about it, as he believed the Complainant and Mr Lanigan were good friends and would contact each other directly.

On behalf of the Respondent, it was submitted that the Complainant did not discharge the burden of proof, particularly in light of communication issues, and that the onus and obligation were on the employee to contact the employer. It was further submitted that the Complainant had requested time off because he was unhappy with his employment.

The Complainant, a lay litigant, was invited to elect at the hearing which complaint he wished to proceed with, the complaint of unfair or constructive dismissal. It was his decision to proceed with both complaints.  The Respondent denied the dismissal and the Complainant’s employment was ever terminated by it both in its statement of 28 March 2024 and in Mr Lanigan’s oral evidence.

Therefore, dismissal is at issue between the parties.

CA-00061009-001

However, the general sequence of events is not disputed between the parties: the Complainant’s employment history and position, the engagement of agency security staff, and that the Complainant took two weeks off in September 2023 but did not return to work.

What is in dispute are the Complainant’s attempts to contact Mr. Lanigan, with the exception of the registered letter dated 3 January 2024. This letter was exhibited by the Respondent in its submissions.

The decision in this complaint rests heavily on this letter, in which the Complainant outlines his attempts to contact the Respondent, his employment history to date, and the annual leave he took from 1 September 2023, together with his account of being refused entry to the premises. The letter concludes with a statement that the complaint was being forwarded to the Workplace Relations Commission.

No evidence was presented by the Respondent to show that he replied to the letter. The Respondent, while disagreeing with its contents, did not take steps to rebut the claims. This is particularly questionable given that a long-term member of staff had been absent since the previous September without explanation. Where there is an onus on the Respondent to actively manage its staff in the event of an unknown or unauthorised absence, it is incumbent on the Respondent to engage with the employee. An employer cannot simply sit back and ignore an absent employee.

As to the claim that the Complainant expressed a desire to end his employment in the near future, this does not amount to a resignation. There was no letter of resignation or even a formal notification from the Complainant to the Respondent expressing such a desire.

On the basis of the Respondent’s failure to engage with or, at a minimum, respond to the letter of 3 January 2024, I find that the Complainant was dismissed by the Respondent within the meaning of Section 1 of the Unfair Dismissals Act 1977.The next question to consider is whether the Respondent unfairly dismissed the Complainant.

The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“6.—(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.”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia,

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

The principles of natural justice require that the disciplinary investigation, the decision to impose a sanction (in this case, dismissal), and any subsequent appeal be conducted independently and objectively. An employee is entitled to a fair and impartial determination of the issues under investigation, as outlined in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) and established case law.

In this case, no disciplinary procedure was followed, nor were fair procedures applied.

Accepting the Complainant’s evidence, I find that he was unfairly dismissed by the Respondent.

CA-00061009-002

In light of the finding above, the complaint which was listed first and therefore, dealt with in order, I find the Complainant was not constructively dismissed from this employment with the Respondent.

CA-00061009-001

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.

In the circumstances where the Complainant did obtain alternative employment on 29 March 2024, at a lesser amount, I am awarding the sum of €6,750 in compensation for the 27 weeks he was out of work.

No amount of ongoing or future loss has been awarded where the Complainant did not have any evidence of his attempts to seek employment in an alternative industry. While it is understandable that it may have been difficult to secure alternative employment in the nighttime security sector in Kilkenny city after his employment ended, the Complainant was not precluded from seeking employment with daytime security providers and/or alternative roles in other industries.

CA-00061009-002

I find the complainant was not unfairly (constructively) dismissed.

Unfair Dismissal – Constructive Dismissal