Complainant

Respondent

Parties

Tadgh  Dunne

Sod Kitchen Ent Ltd (Homebake)

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self-Represented

Stephen O’Donnel (Owner)

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-00068999-001

02/02/2025

The complainant has been employed as a waiter with the respondent

The start of the employment was not particularised in the complaint form by the Complainant but is confirmed in the hearing as the 24/11/2023 bringing them within the ambit of the Act. The Complainant makes out that the termination date is 21/12/2024.

The complaint was lodged on 02/02/2025 a period of 5 weeks brings it within statute.

At the time of the hearing, I had not received a submission from the Complainant, and he later relied upon his complaint form and oral evidence.

 At the hearing I had received some documents from the Respondent, but not a submission and he also relied upon oral evidence. The Respondent was prepared to provide to me the submission he read from at the hearing, and I requested a copy of this for myself and the Complainant and allowed him time to provide this and for the Complainant to comment.

The Complainant had no submission to provide to me before or at the hearing and made no response to the Respondent documentation.

On 21st of December 2024, The Complainant called the Respondent 40 minutes before his shift was due to start to let him know he was unfit to attend work due to flu. The Respondent did not answer this call. The Complainant then followed this by sending a message explaining regret for the situation and that he was available for a call at any time. The Respondent replied to this message by text, stating ''I have taken you off the roster for this week and next!”. I will look at next roster and see what's available!''. The Complainant had no further correspondence from the Respondent.

He informed the Respondent of his availability to return on the 27th of December for which there was no reply, and he sent another text on the 3rd of January informing him on his upcoming availability for the new college semester and highlighting that he was available for any hours needed all to no response. An attempt to call the Respondent again on Jan 13th on two occasions with no response. An email was sent to effect that the Complainant felt ignored and requesting a meeting and this too was ignored and the Complainant subsequently, and reluctantly, made a complaint to the Commission. This was followed by a visit to the Café on the 15th where the Respondent was not present.

It is the Complainant contention that he has been penalised for being sick and that they had made every possible attempt to resolve the issue. The Complainant also asserts that he had been removed from the Roster previously for informing the Respondent he would be attending college.

The Complainant makes out that they have been dismissed without process.

The Respondent set out the nature of the rosters for the organisation and the change for the Complainant to the College/School Roster on his taking up his college responsibilities.

The Respondent suffered some trading difficulties and was forced to make changes to the Roster for all staff; both the Complainant and another flexible employee were removed from the roster due to a lack of available hours. The Respondent denies that there was any penalisation of the Complainant for being sick.

The Respondent denies any dismissal has taken place and the removal of the Complainant from the Roster was not confined to him and does not make for a dismissal. The Respondent told the hearing that the Complainant was always a valued employee and, in fact, still is if the hours emerge and the Complainant is willing to work them.

The Respondent sets out that they always acted in good faith and proportionally and asserted again that the reduction in work for the Complainant and others was due to a downturn and not a termination. The Respondent relies upon s6 of the Act to effect that a dismissal is presumed unfair unless justified on substantial grounds.

Firstly, it is the evidence of the Respondent that the Complainant has not been dismissed. What has happened is there have been trading difficulties and the Complainant and another staff member had hours reduced, due to the changes in the roster. It was the choice of the Complainant to move to the School/College (Casual) roster which has been impacted by the lessening of hours for the part time staff.

The Respondent set out several incidents where the Complainant had called in sick and had not offered explanation for his absence. The Respondent denies in full that there was a dismissal.

Case Citations

The Respondent sought to rely upon several cases. The first ADJ-00029548, A Retail Worker v A Supermarket (WRC, 2021). This is not a correct reference in that ADJ-00029548, is referenced as a Computer Operator v A University and is under s13 of the Industrial Relations Act and is not relevant to the issue at hand. He also cites Fitzgerald v Pat the Baker Ltd (UD1184/2006) is not listed and instead returns a similarly named case of Martin Fitzgerald (claimant) v Pat the Baker (respondent)UD 708/98 NIN1516/98 Employment Appeals Tribunal) the relevance of which remains unclear.  Copies of those cases which the Respondent wished to rely upon were sought from the Respondent by the 15th of September and have not been presented to the Commission

Contract of Employment

I have asked the Respondent for a copy of the contract, and I was supplied with a contract document that is unsigned by either party and thus have no evidence of a contract reduced to writing and signed by the parties. There is no legal requirement for a “contract” as its existence can be inferred and there is no dispute to the existence of a contract between the parties, albeit not signed, where it has been reduced to writing. I have not been provided with evidence that the Respondent is compliant with his duties on the core terms per the Terms of Employment (Information) Act 1994 (as amended), either document may have set out a lay-off scenario.

Fact of Dismissal or Otherwise

The Respondent argues that the act does not apply because there has been no dismissal. However, the dismissal of an employee does not necessarily follow any one prescribed formula, and the dismissal may be “de facto” which appears to be the argument of the Complainant where they were no longer rostered and with no reasonable chance of being rostered.  This does not necessarily make such a dismissal unfair where the Respondent can rebut the allegation and show that there have processes used, for good purpose with the employee on notice.

The Respondent is at pains to point out in correspondence that the Complainant is still on the list for work, although not on the roster and this is due to trading difficulties which have made a restructuring necessary. It is denied by the Respondent who contends that no dismissal has taken place in the context of the Complainant mobbing themselves from the part time roster to the “student” roster by dearth availability, in attending college.

I do not believe that the Complainant is still in employment and find it alarming that there is an attempt to classify him as employed where he clearly is not. I have come to this conclusion on the basis that he was taken off the roster and never put back on it again. I am also swayed by the correspondence of the 5th of April 2025 from the Respondent to the Complainant that he was ceasing his registration on Revenue, albeit that it could be activated again. This I consider persuasive and not determinative’.

I note that the Respondent sets out the trading difficulties that led to changes to all rosters and I accept this and sympathise with him. However, he has no policies and or procedures in place to stand over his actions. I have no evidence that the Complainant has seen the contract furnished nor any other procedures in line with raising grievances etc. There is no issue with the Respondent offering the Complainant fewer hours or no, but he must have a basis for it.

The issue in the case is whether an unfair dismissal has taken place. The burden to demonstrate this lies with the Respondent on the balance of probabilities and he has not been able to show that he followed any procedure, nor was any policy or procedure adduced that might have demonstrated the outcome as it was as a possibility. I acknowledge his good faith as an employer and the burden of administration placed upon him by the legislator. However, he must be in compliance.

Reducing Casual Staff Hours

None of what has gone before should be taken to mean that the Respondent cannot release casual staff as required for trading demands, but he must have a fair and transparent process or policy in place. Had there been evidence of the core terms or contract with a clause to say that the Employee understands that periods of lay-off do not constitute termination of employment unless otherwise notified in writing; there may well have been a different outcome.

In this instance I have not been shown a fair and transparent process which could have been avoided this complaint by informing the employee that he was dismissed by reason of a downturn and his details would be kept on file for future work. However, what we have seen in the evidence is an attempt to avoid responsibility for a decision to terminate for whatever reason.

Based on the foregoing I have concluded that a technically unfair dismissal has taken place.

Remedies

The Complainant has not set out a description of losses and has not sought re-engagement or re-instatement.  However, I am required to consider these as a remedy.

S 7(1)(a) and (b) provides that reinstatement shall be in the position which the employee held immediately before dismissal on the terms on which they were employed before and deemed to have commenced on the day of the dismissal. Reengagement would put the Complainant in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances.

Both reengagement and reinstatement are entirely within the discretion of an Adjudicator, having regard to all the circumstances. In An Bord Banistíochta Gaelscoil Moshíológ v Labour Court [2024] IESC 38 the Supreme Court addressed the matter of reinstatement.

In all the circumstances of this case, where there is an absolute breakdown in trust between for at least one of the parties and where the Complainant is seeking only compensation; I do not find reinstatement nor re-engagement a suitable remedy.

Compensation

The Complainant has failed to put forward anything in the way of mitigation of losses and the Respondent’s exposure in compensation is limited. However, given that I have concluded that the dismissal is technically unfair and that reinstatement is not appropriate I must move to compensation for losses.

Section 7(1)(c) of the Acts: -

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

 or

(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,

Section 7(2)(c) provides that in examining the financial loss, an Adjudicator must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow an Adjudicator to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.

The Complainant has not provided details of his loss nor if he has sought or secured alternative employment. Therefore, as an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of a dismissal taking into account the Complainant has not provided specific details on his attempts to mitigate the loss and I am mindful of the decision of the Labour Court in Cityjet and Ramon Sanchez Gil (UDD215) where the Court removed compensation from an Adjudicator’s decision where there was no demonstration of mitigation of loss.

Taking into account all the circumstances of this case I am awarding the Complainant compensation under the Acts in the amount of €200.00 (gross) as is just and equitable in all the circumstances.

For the reasons outline above I find the complaint of unfair dismissal well founded and taking into account all the circumstances of this case I am awarding the Complainant compensation under the Acts in the amount of €200.00 (gross) as is just and equitable in all the circumstances.

Technical unfair dismissal, no provision for lay offs