Worker

Employer

Anonymised Parties

Assistant General Manager

A Restaurant

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act

IR - SC – 00003623

06/01/2025

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 all hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence provided by the other side.

The Specific Details of the within dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 6th of January 2025 and relate to a short period of employment which lasted from the 14th of September 2024 to the 3rd of January 2025.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised.

At the completion of the hearing, I did take the time to carefully review all the matters presented to me in the course of the two days of hearing. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that have been presented to me and instead tend to concentrate on the issues which have guided me to the final recommendations being made. In this regard, I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made his own case. The Complainant brought a witness with him in the person of KR to provide oral evidence in support of his case. The evidence adduced by the Complainant and his witness was challenged as appropriate by the Respondent’s representative. The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form which read as follows:

On Friday, January 3, 2025, the staff and I had a direct discussion with the General Manager ********asking about the way tips are distributed to the staff, as we realized months ago that tips were not being distributed well because more was being earned than the staff received. When we had this talk, the manager did not give us a concrete answer and did not want to show us the tip records (which is our right by law) and after a few minutes, she talked to the owners and they decided to remove me from the place with immediate effect, saying that they would pay me my vacation and everything I was owed the following week. When I asked what the reason was, she didn't give me one that was substantiated with the law and even mentioned that the reason was because I supported this meeting with the staff (which is our right by law) and she decided to terminate my employment relationship without prior notice or prior verbal warnings. I want to file a complaint for wrongful dismissal since I was not notified in advance, and I did nothing out of the law. Also, we believe that tips are being used to pay part of the workers' wages in cash (which is illegal and fined according to WRC status).

The Complainant alleges that he was unfairly dismissed. He says further that he did not receive notice of termination of employment, and he did not receive previous verbal warnings to support his dismissal. The Complainant further asserts that the decision to terminate my employment was made after the staff meeting.

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 Complainant 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 co-owners. They gave evidence around the termination of the Complainant’s employment though did not directly witness the conversations had between the Complainant and the Geneal Manager PE.

The Respondent asserts that the Complainant was working out his notice period and that the said notice period was cut short in circumstances where the Complainant orchestrated a hostile workplace meeting wherein serious monetary issues were raised.

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 given serious consideration to all the issues raised by the parties herein. Unfortunately, the key witness in this matter, the restaurant General Manger, was not available to give evidence in this matter. However, the Complainant did provide me with a recording of the conversation held at the time of his dismissal. Having initially heard the recording themselves, the Respondent co-owners did not raise any objection into my hearing the said recording.

In terms of the chronology of events it seems that the General Manager had recruited the Complainant to take on the role of Assistant General Manager in the large and busy restaurant. The Complainant came onto the premises in or about September 2024 to take on that role. As I understand it, the Complainant was on a fixed salary for a 40-hour week. I also understand that the Complainant had a work permit which attached to a previous employer, and which was due to expire in early 2025.

The Complainant was happy and worked well with the team. In early December 2024 the Complainant had a meeting with the General Manager together with the two co-owners. At the meeting the Complainant raised the issue of the upcoming expiration of his work permit and asked the co-owners to sponsor a new work permit. The Complainant explained that a new work permit would require a €5,000.00 bump in annual salary. By the end of the meeting it was agreed that the co-owners would consider their options and get back to the Complainant.

On the 26th of December it was confirmed by both sides to me that a meeting took place between the Complainant and the General Manager wherein it was explained to him that the Respondent would not be applying for a work permit for the Complainant. It was just something they opted not to do. I am satisfied (based on the recording I heard) that the Complainant knew that the Respondent’s General manager also told him that he could continue working until the end of January 2025. I accept that the Complainant knew that once his existing permit expired, he would not be retained. To my mind the Complainant was therefore on notice that his employment was going to end at the end of January 2025. I am also satisfied that the Complainant intended to work through to the end of January 2025 unless he secured another arrangement. As it happens the Complainant had lined up alternative employment to start on the 3rd of February 2025.

However long before the end of January an incident took place in the workplace which brought matters more quickly to a head. On balance, I am satisfied that the Complainant orchestrated a meeting of all staff to be held on the premises at circa 5pm on the 3rd of January 2025. This included all staff not even rostered that day. I am also satisfied that the purpose of the meeting was to confront the General Manager about the issue of tip and service charge distribution. The Complainant said that the staff had been unhappy about the manner in which tips were distributed and there seemed little clarity or transparency around the distribution of same.

Even though the General Manager was not available to give evidence before me I am satisfied from the recording I heard, that the General Manager had been very upset and the confrontation which I understand came out of the blue. I accept that even the most robust of General Manages might be upset at being challenged in the manner described. The Complainant’s own witness confirmed that the General Manager said “you are ganging up on me” and “this should be done at another time” – a reference to the fact that the restaurant opens at 5pm.

The co-owners both gave evidence that the General Manager rang them very upset at what had happened and what was happening, and they are both satisfied that the allegation made by the General Manager was that the Complainant was the ringleader and the most vocal. The Complainant gave evidence conceding that he had opened the conversation. The Co-owners described the General Manager as being extremely upset, very stressed and tearful. The co-owners said that the General Manager was overwhelmed and panicked. The initial instruction was to advise the staff that there is a better time to deal with this issue. However, the General Manager came back and said that the Complainant would not let it go.

Co-owner L (who was on the phone at the time trying to give guidance) gave evidence that her first concern was in respect of the General Manager, and she instructed the General Manager to tell the Complainant to go. To immediately leave the premises.

The Complainant’s recording is of the conversation had between the General Manager and himself in which she tells him that the co-owners have asked that he leave the premises immediately and not wait until the end of the month.

In effect, this was a termination of employment for unacceptable conduct on the part of the Complainant. I am satisfied that the response of the co-owners was within the parameters of what might be considered reasonable in the circumstances. I was very struck by the inappropriateness of the Assistant General Manager gathering the staff together for the purpose of confronting and attacking the General Manager in the manner described. I accept there may have been a Grievance regarding tips – though the grounds for same seem to have been explained by the co-owners – but the Assistant Manager taking it to the General Manager in this way, lacked any management or leadership skill.

On balance, I am satisfied that the Complainant was not unfairly dismissed but was dismissed for egregiously breaching the trust and confidence placed in the Complainant as an Assistant General Manager.