Complainant

Respondent

Parties

Ian  Kavanagh

Southern Cross Taverns                      t/a The Promenade Bar And Grill

Complainant

Respondent

Representatives

John Farrell                                       Director

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-00069631-001

28/02/2025

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of justice. It was therefore open to members of the public to attend this hearing.

In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statements or evidence is an offence.

The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 28th of February 2025. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.

The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission set out in the Workplace Relations Complaint Form which read as follows:

On the 11/02/2025 i was brought in by one of the owners john farrell advising me that he has to let me go due to lack of funds in the business and they cant afford wages, i was due off on the 11th and 12th as per roster. he gave me a weeks notice but advised me that if i didnt want to do this he would understand i said i would get back to him as i was in shock. i then called him the next day the 12th and said i would be back in on the thursday as per roster and he advised me no need i have cover, i then rang him again on the 14th about the roster for the following week as my notice period i met with john in the pub and he said this isnt necessary and no need to come back. i also got nothing in writing or email as to why i was being let go from my job i received my final pay on the 21/02/2025 for my holiday hours my 1 week notice and only the one day i worked w/e 16/02/2025 when i was rostered to work that whole week. i have asked multiple times for a letter of termination and have not received this.

The Complainant forwarded some supplementary documentation to assist with the making of his case.  No objection was raised to any of the materials relied upon by the Complainant in making his case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent company Director.

The Complainant alleges that he was unfairly dismissed.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Respondent in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by statute. 

The Respondent entity was represented by the General Manager/Director.  All evidence was heard following an Affirmation.

The Respondent rejects that there has been an unfair dismissal and asserts that the termination of the employment was purely for financial reasons.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this one-day hearing.

At the outset, I should say that there are a number of matters which came to light as the evidence unfolded. I am satisfied that the Complainant commenced employment with this Employer as far back as May of 2023. At that time the Complainant worked at another premises and only moved over to the Bray premises in February of 2024. The Complainant moved into the role of full-time general barman at the bar and grill premises in Bray at a salary of circa €52,000.00 per annum.

The Complainant therefore had one year and nine months service in February 2025 which was when the Complainant was let go. The Complainant was not entitled to a Statutory redundancy having only been with the Employer for twenty-one months and not the requisite twenty-four.

The parties appear to agree that the restaurant/bar was not doing as well as it might have been doing. The Complainant was brought onto the premises when it opened in February of 2024 at which time the Complainant and the Director  - JF - agreed the Complainant’s salary and other terms and conditions. The Complainant worked a full week and was on hand to do anything and everything expected of him as the most senior member of staff outside of JF himself.

JF gave evidence that the premises was not doing as well as hoped. Whilst the annual turnover was in the region of one million euro this was significantly down from the projected 1.5 million euro forecast. In fact, JF gave evidence that there was a shortfall of about €150,000 in the first year which was worrisome to both JF and his partner Mr. P.

JF gave evidence that he and Mr. P needed to consider how and where to reduce overheads and that the obvious place to start looking was at the salary outlay. It was in these circumstances that the Complainant’s salary of €52,000.00 came into focus.

JF attempted to suggest that there were also performance issues with the Complainant, but he ultimately resiled from asserting that the termination of the Complainant’s employment involved anything other than the need to bring expenditure down in line with the financial forecast.

The Complainant gave clear evidence that when he was taken aside by JF, on the 12th of February 2025,  he was told that he was being let go because the company could no longer keep him on as the level of his remuneration was not sustainable. The Complainant says he was shocked and tried to push back on this decision and raised the issue of reduced wages or reduced hours until the busier summer months came around. JF was not open to any of these suggestions, and I am satisfied that at no stage prior to this conversation had JF thought to look at alternative arrangements for the Complainant. The decision was made to terminate the employment with immediate effect.

The Complainant had less than two years’ service and was therefore entitled to one week of notice. This was paid to the Complainant in lieu of the Complainant attending the workplace – though the Complainant offered to work his notice period. The Complainant was also paid for two weeks of accrued annual service in his last pay package. Surprisingly, the Respondent deducted €700.00 from the Complainant’s final pay package to offset against a company car loan. This money was not, I am told, due at that time. The Complainant’s permission to make this deduction was neither sought nor given. It seems, however, that the Complainant’s obligation to pay this money would have arisen in any event.

I am satisfied that the termination of the employment herein was brought about by a need to re-structure in circumstances where the Employer needed to trade with fewer employees as a cost saving measure. In the circumstances I accept that this is Redundancy situation even though it was not described as one at the time. The dismissal was attributable wholly or mainly to the fact that the Employer needed to reduce overheads in a difficult financial setting.

However, even if there may have been a genuine Redundancy situation there is an ongoing onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. I have seen no evidence that suggests any other alternative roles were looked at. More importantly, JF has confirmed in his evidence that it did not even occur to him to work together with the Complainant to see if there were alternative, less well-paid work and /or hours that might allow the Complainant some respite against the financial freefall that resulted from his abrupt termination.

It is unfortunate that the Respondent witness did not look for HR advice over this issue. Instead, JF went for the nuclear option of terminating the employment of an Employee who undoubtedly relied on and needed his salary. This was a salary that the Complainant and JF had agreed about one year earlier. There was no option to appeal this decision and there was no opportunity to see if any alternative could have at least ameliorated the worst impact. I am not satisfied that this was a reasonable approach.

The Respondent witness went on to give evidence that there were at least two new hires onto the premises in the weeks after the Complainant was let go and whilst I might accept that the positions filled do not equate to the position and salary the Complainant had held it represents a missed opportunity to give the Complainant some chance. As it happens one of the new hires was given the role of Assistant bar manager.

On balance I am finding that the Complainant’s dismissal by reason of a redundancy amounted to an unfair dismissal in circumstances where the Complainant had no warning and was given no opportunity to consider alternative positions which came on stream in the aftermath of his termination.

The Complainant was paid a week of notice meaning that his employment terminated on the 19th of February. Thereafter the Complainant was four weeks out of work before he obtained another position in Tallaght on a commensurate salary. I note that JF was instrumental in helping the Complainant to get the new employment by providing a reference.

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

CA-00069631-001  -   I am finding that the Complainant was unfairly dismissed and I am awarding compensation for four weeks financial loss attributable to the dismissal. This amounts to €4,000.00 compensation.