Complainant

Respondent

Parties

Darragh Duggan

Tribe Restaurant

Representatives

Represented himself 

Represented by management

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00072805-002

25/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00072805-003

25/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00072805-004

25/06/2025

The respondent runs a restaurant with a bar and a coffee van at a separate venue in County Meath.  The complainant was a student in August 2024 when he started working as a bar tender in the restaurant.  He worked on a casual basis, and was sent a roster a week in advance.  His hourly rate was €13.50.  His employment ended after 10 months on May 11th 2025.

In contravention of s.4 of the Minimum Notice and Terms of Employment Act 1973, the complainant claims that he wasn’t given notice of the termination of his employment.  He claims also that he wasn’t permitted to take breaks at work, a breach of s.12 of the Organisation of Working Time Act 1997.  Finally, he claims that he was dismissed partly due to an injury to his hand.  He claims that this amounts to discrimination on the disability ground.

At the hearing, I was informed by the manager that the premises has the following opening hours:

Monday:  5.00pm to close after last service from the kitchen at 9.00pm

Tuesday and Wednesday:  Closed

Thursday and Friday:  5.00pm to end of service

Saturday:  1.00pm – end of service

Sunday:  4.00pm to end of service

Staff are paid according to the start and finish time on their clock cards, and the owner informed me that the staff finish from 8.00pm onwards.

The manager said that the complainant’s hours fluctuated depending on his availability and how busy the restaurant was likely to be at the time of the year.  The complainant said that he was rostered for more hours at holiday times and he also covered more shifts when a bar tender left.  He generally started work at 4.30pm or 5.00pm and worked until the last customer had finished ordering. 

The timesheets provided by the respondent after the hearing show that, in the 10 months between August 2024 and May 2025, the complainant attended work on 70 occasions.  In those months, he worked the following number of shifts:

August 2024:  13 shifts

September 2024:  7 shifts

October 2024:  10 shifts

November 2024:  9 shifts

December 2024:  11 shifts

January 2025:  2 shifts

February 2025:  4 shifts

March 2025:  6 shifts

April 2025:  4 shifts

May 2025:  4 shifts

Of these 70 shifts, 21 were on Saturdays and 23 were on Sundays.

Between August 5th 2024 and May 10th 2025, the complainant was paid for 526.5 hours, inclusive of his entitlement to holiday pay.  Based on this information and the information provided on the timesheets, I estimate that the average length of each shift was just under seven hours. 

The clock record shows that of the 70 days that he was rostered to work, the complainant finished after midnight on four occasions, with the latest finish being 1.00am on August 23rd 2024.  The record shows that, for a little over half of the days on which he was rostered, he generally finished at 11.00pm, although, on 13 occasions, he finished at 11.30pm.  On around 30 shifts, he finished before 11.00pm.  

CA-00072805-002:  Complaint under the Minimum Notice Act 1973

It is the complainant’s case that he was dismissed on May 11th 2025 and that he wasn’t given notice or paid in lieu of notice.

CA-00072805-003:  Complaint under the Organisation of Working Time Act 1997

Under this heading, on the form he submitted to the WRC, the complainant said that he was offered the option of taking a break during his shift, but not of an appropriate length.  He said that he turned down the option to take a break because “I hated coming back into the bar and it being left in a mess by other members of staff, as this would delay me getting orders out when I returned.”  He claims that there were also numerous times when he was overworked and no break was offered. 

In his evidence at the hearing, the complainant said that there weren’t enough staff in the restaurant, and that other staff didn’t do their jobs.  He agreed that he was told to take his breaks but that his decision to not take breaks was “a personal decision based on the circumstances I was in.”

A-00072805-004:  Complaint under the Employment Equality Act 1998

The complainant claims that his dismissal was “partly due to my hand injury which occurred at work in December 2024.”  He said that he takes medication which affects his blood pressure and he has on-going issues with fatigue.  He said that he injured his hand initially in October 2023, and he hurt it again at work on New Year’s Eve in 2024.  When he returned from sick leave, he said that he suffered from hand tremors.  He thinks he was dismissed because he was too slow.  He said that he didn’t get an opportunity to explain that his symptoms were related to his health and medication.

In his evidence at the hearing, the complainant said that, in August 2024, when he was interviewed by Ms Olivier, he disclosed to her that he had hurt his hand in October 2023 and that he had deferred his studies as a result.  On New Year’s Eve 2024, he said that he was working in the bar with an inexperienced helper.  Around 8.30pm, he said that his tendon was “gone.”  He worked on for 30 minutes using just one hand and then he told another employee that he couldn’t keep going.  This employee advised him to tell Ms Olivier, who, he said, told him to go home.

CA-00072805-002:  Complaint under the Minimum Notice Act 1973

The respondent’s case is that the complainant was not dismissed, but that he didn’t return to work after a meeting with the manager, Ms Olivier, on May 11th 2025.  At the hearing, Ms Olivier said that the complainant’s hours fluctuated depending on his availability and the business in the restaurant at the particular time of the year.  She said that the complainant had asked to reduce his hours in December, because he is a musician and he had started gigging.  In April, Ms Olivier said that the complainant asked her if he could work more hours, but she said that the restaurant was quiet at the time and they had recruited a full-time bar tender.  She said that she has to reduce the hours of staff when there are less reservations.  It seems that the complainant may have asked her again for more hours when he was at work on Saturday, May 10th, because Ms Olivier arranged to meet him the following day to tell him that she couldn’t give him any more hours and that she hoped that the situation would improve in the “communion season.”  She said that she explained that she could give him some hours in the coffee truck in Bettystown.  She said that he replied that he wasn’t interested in that option.

Ms Olivier said that the complainant became agitated at the meeting and said that no one ever raised any problem with his performance.  She said that he asked her to point out areas he was lacking in.  He referred to the customers who left without paying, although no blame was attributed to him regarding this.  Ms Olivier said that she never questioned the complainant’s ability.  Before she ended the meeting on May 11th, she said that the complainant became aggressive and said that he could take them to the WRC, which she found very intimidating.  She said that she ended the meeting at that point.

Concluding her statement, Ms Olivier said that she didn’t hear from the complainant after May 11th, although he remained in the staff WhatsApp group until June.  Her position is that he decided not to return.  She said that she thought he would be back.  She said that she sent him a text message to let him know that she had tips in an envelope for him.  When he didn’t reply, on May 23rd, she said that she sent him the tips by Revolut.

Ms Olivier said that she thought the complainant would come back to work, and that some hours were available for him until the restaurant got busy again.  I asked her why the complainant was paid for accrued holidays and why a cessation date of May 10th is given on his final payslip.  She said that she asked the payroll person to pay the complainant for his holidays on May 13th because he hadn’t done many hours that week.  She said that she doesn’t know why there’s a cessation date given, and that it must have been inserted by the payroll company.

CA-00072805-003:  Complaint under the Organisation of Working Time Act 1997

In their evidence at the hearing, the respondent’s witnesses said that staff clock in when they start their shifts and clock out at the end.  They are paid for breaks and they don’t clock in and out for breaks.

In their submission to the WRC, the respondent said that staff are required to take their breaks when their line manager suggests.  The bar can get busy and it may not always be feasible for an employee to take a break, particularly if there’s no cover.  This would be compensated for at the end of a shift or by a later start on another shift.  The complainant chose not to take a break.

CA-00072805-004:  Complaint under the Employment Equality Act 1998

The respondent’s position is that the complainant wasn’t dismissed, but that he left his job following a meeting with his manager when he was informed that she couldn’t give him any more hours in the bar.  Ms Olivier said that the complainant’s hours always fluctuated.  When he commenced in August 2024, she said that he had a lot of availability, then he returned to college, and was less available.  In December 2024, he said that he had returned to playing music and he wanted to work less hours.  At their meeting on May 11th 2025, when she told him she could give him hours in the coffee truck but not in the restaurant, Ms Olivier said that the complainant said that he would have to find another job.

The complainant went home early on New Year’s Eve.  Ms Olivier’s evidence is that he didn’t mention that he had hurt his hand, but he said that he wasn’t well.  She said that he definitely did not tell her about his hand injury when she interviewed him in August 2024.  After his early departure on New Year’s Eve, Ms Olivier said that she sent the complainant a text message on January 1st and 4th 2025, asking him how he was.  He replied on January 4th 2025 and Ms Olivier included a copy of this reply in her documents at the hearing.  In the message, the complainant referred to his hand not “doing great, but it isn’t doing terrible either.”  He said “it’s definitely not as bad as it was in 2023 when I got the injury!”  He said that he was confident that the relapse was short-term.

CA-00072805-002:  Complaint under the Minimum Notice Act 1973

The complainant claims that he was dismissed at the meeting on May 11th 2025, following a discussion about poor performance.  The manager’s position is that he didn’t return to work after that meeting, which ended on a sour note.  To determine if he was entitled to notice or pay in lieu of notice, I must first decide if the complainant was dismissed. 

The WhatsApp messages provided to me in advance of the hearing show that the relationship between the complainant and his manager was friendly, and that there was no animosity between them.  No issues were raised about the complainant’s performance, and I am satisfied that the manager had no concerns about his performance.  From the payslips he provided, it is apparent that his hours flexed up and down, depending on his availability and the level of business in the restaurant.  I note from the messages that there was no penalty and no negative response from the manager when the complainant indicated that he was unable to come to work.

It is my view that the purpose of the meeting on May 11th was so that the manager could explain that hours were short in the restaurant due to a full-time bar person having been recruited, and that there wasn’t enough business for two bar staff to be rostered together.  As an alternative to the restaurant, the manager offered the complainant hours in the coffee truck in Bettystown. 

It is apparent from the information provided by the complainant that, at the meeting on May 11th 2025, he was the first to raise the subject of his performance and he was the first to raise the prospect of being “fired.”  I am satisfied that the manager had no intention of having such a discussion with him.  It seems to me that he raised allegations about his performance which were unfounded, but which were intended to form a pretext for his dismissal.  I am satisfied that the manager had no concerns about the complainant’s performance that would lead her to dismiss him.  I have reached this conclusion because she offered him hours in the coffee truck in Bettystown pending the onset of the summer season in the restaurant, when the business was likely to pick up. 

It is apparent that the meeting on May 11th ended badly and that the manager was intimidated by the complainant’s behaviour.  Despite this, at the end of the meeting, the complainant hugged the manager, a rather strange overture, considering the complainant’s claim that he was dismissed.

The complainant wasn’t given any hours after the meeting on May 11th   The manager’s evidence is that he was still in the schedule, but he didn’t confirm his availability.  The payslip issued to the complainant on May 15th indicates that his employment ceased on Saturday, May 10th, when he worked for three and a half hours.  At the hearing, the manager said that she thought that the complainant would come back.  He didn’t come back to look for work, and the manager didn’t go looking for him, although she said that she kept him in the staff WhatsApp group until early June.  She said that she sent him a few text messages to let him know that she had tips for him and that he didn’t reply.

In the context of the doubt surrounding the dismissal of the complainant, I am guided by the general understanding of dismissal which is set out at section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan (© Bloomsbury 2017):

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or that it may be reasonably inferred.”

The respondent in this case did not “clearly and unequivocally” inform the complainant that his contract was at an end.  However, when he didn’t return to work, and when he didn’t indicate his availability after May 11th, it was incumbent on the manager to contact the complainant to ask him about his intentions.  I note that he remained in the WhatsApp group and that it was open to him to indicate his availability and that he did not do so.  I note also that the manager contacted the complainant by text message to tell him that she had tips for him.  He could have used this as an opportunity to re-engage and to return to work.

That said, despite the failure of the complainant to indicate his availability for work, the onus was on the respondent to formalise the situation with one of two options.  Firstly, the manager could have written to the complainant to ask him to confirm if he was available for work.  Alternatively, she could have written to him to formally terminate his employment.  The failure to exercise one of these options resulted in the complainant being set adrift.  The fact that he may have acquiesced in this state of affairs, doesn’t mean that he wasn’t dismissed.

Evidently, the complainant wanted to be rostered for more hours when his college term was coming to an end.  It is my view that he contrived to bring his employment to an end by behaving in an intimidating manner and threatening his manager that he would take a case to the WRC if she didn’t give him more hours.  It is my view that he may have been put back on the roster if he had contacted her and re-engaged in a more respectful tone.

Having reached this conclusion, I am required to make a finding that the complainant was dismissed, or that he resigned.  Where there is ambivalence about the departure of an employee, there is an onus on the employer to take control of the situation.  I find that the failure of the manager to contact the complainant to establish if he was available for work resulted in him not being offered any further work.  Any reasonable interpretation of this scenario must be that the complainant was dismissed.

As I have concluded that the complainant was dismissed, it follows that he was entitled to notice or pay in lieu of notice.

CA-00072805-003:  Complaint under the Organisation of Working Time Act 1997

At s.12 of the Organisation of Working Time Act 1997 (“the OWT Act”), the law on breaks during the working day is set out:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

The complainant’s case is that, although he was instructed to take his breaks at work, he decided not to because he didn’t like what he had to deal with in the bar when he returned from his break.  As someone who has worked in a bar, I understand this predicament.  However, a complaint regarding a breach of s.12 of the OWT Act requires a complainant to show that they were prevented by their employer from taking breaks or that some aspect of the organisation of the work made it impossible for them to take their breaks.  I am not satisfied that the possibility of a mess in the bar is sufficient for the complainant to claim that he was prevented from taking his breaks.  I am satisfied also, based on his own evidence, that the complainant was instructed by his manager and by colleagues to take his breaks.  I find therefore that there is no substance to his complaint that he was prevented from taking breaks.

CA-00072805-004:  Complaint under the Employment Equality Act 1998

Section 85A of the Employment Equality Act transposes into Irish law Article 19(1) of the EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section 1 of section 85A states:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  This “evidential burden” was described in the decision of Mitchell V Southern Health Board[1] wherethe Labour Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

My task therefore, is to consider if the complainant has shown that, based on the primary facts, he was discriminated against due to disability when his employment ended on May 11th 2025.

The complainant claimed that he suffered a hand injury in October 2023 and that he informed the restaurant manager about this when he was recruited in August 2024.  The manager disputes this entirely.  It occurs to me that it would be unusual for a young person being recruited for a job as a bar tender to reveal at an interview that they have a hand injury.  If he had made such a revelation, it seems to me that the manager is likely to have asked for a medical certificate to determine his suitability for the job, because there might be a risk of a further injury. 

On the form he submitted to the WRC on June 25th 2025, the complainant provided details of medication he was prescribed for certain conditions.  He provided no evidence that he told his employer about his conditions or about the side effect of his medication, which he said caused him to feel fatigued and to work slowly.  There is no evidence that he was fatigued or slow at work and he indicated that he was happy to work through his shifts without a break.  Apart from his absence in January 2025, he never indicated that he was unable to come to work due to his illnesses.

I am not satisfied that the facts presented by the complainant are sufficient to raise an inference that he was dismissed due to his medical conditions.  I am satisfied that the manager intended to retain the complainant in his job with fewer hours, pending the commencement of the summer season and that his medical conditions were not an impediment to his continuing employment.

I have concluded that the facts presented by the complainant are not sufficient to raise an inference of discrimination, and, for this reason, the burden of demonstrating that discrimination has not occurred does not shift to the respondent.  

CA-00072805-002:  Complaint under the Minimum Notice Act 1973

I decide that his complaint is well founded and I direct the respondent to pay the complainant compensation of €175.00, equivalent to his average pay for one week.

CA-00072805-003:  Complaint under the Organisation of Working Time Act 1997

I have concluded that the complainant was instructed to take breaks during the working day and, for this reason, I decide that this complaint is not well founded.

CA-00072805-004:  Complaint under the Employment Equality Act 1998

Having considered the evidence of the complainant, I find that he has not shown that he was discriminated against because of a disability or for any reason.  I decide therefore, that his complaint under the Employment Equality Act is not well founded.

Minimum notice, discrimination, breaks at work