Worker

Employer

Anonymised Parties

A Bar Tender

A Bar and Restaurant

Representatives

Represented himself

Represented by management

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR-SC-00004583

25/06/2025

The employer runs a restaurant with a bar and they operate a coffee van at a separate venue.  The worker 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.

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 worker’s hours fluctuated depending on his availability and how busy the restaurant was likely to be at the time of the year.  The worker 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 show that, in the 10 months between August 2024 and May 2025, the worker attended work on 70 occasions.  Each month, 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 worker 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 worker 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.  

When he was at work on New Year’s Eve in 2024, the worker said that he suffered a relapse of a hand injury that occurred in October 2023 and, because of this, he was absent from work for three weeks.

In April 2025, the worker said that because his college course was coming to an end, he asked for more hours.  He was scheduled to work for three and a half hours on Saturday, May 10th, and for a full day on Sunday the 11th.  On Thursday, May 8th, he said that he got an updated schedule with the Sunday hours removed.  He got a text message from the manager asking him to come in for a chat and they met on Sunday afternoon.

At the hearing, the worker said that the conversation began with the manager telling him that she had no more hours to give him.  He said that he repeatedly asked if he was being “fired.”  He said that the manager repeated that she had no hours.  The worker said that he felt that he was being forced out and that the manager was “making me quit.”  He said that he asked the manager if she was trying to protect the business in case he brought a complaint to the WRC.  He said that he told her that he felt as if he was being fired without notice and that he had never been given feedback about his performance.

The worker said that the manager then brought up four areas of concern about his performance.  He claims that the issues related to a large group of customers leaving without paying a bill, his failure to help staff in other stations, not collecting dirty glasses and that he was too slow.

After this conversation, the worker said that he and the manager were sitting silently looking at one another and she offered him work in the coffee van.  He said that he doesn’t drive and that this wasn’t a feasible option for him.  He said that he stood up and hugged the manager and wished her “much love and care.”  The worker said that he asked the manager for a final time if he was being fired.  He claims that she replied, “I’m letting you go.”

The worker said that schedules for front of house staff are sent by email and he got no shifts after the schedule he got on May 8th.  He said that his final payslip was created on May 13th and included holiday pay.  This final payslip also indicates that his “cessation date” was May 10th 2025.

The worker’s case is that he was never informed about problems with his performance and he didn’t receive any warnings.  He claims that he was unfairly dismissed.

The employer’s case is that the worker was not dismissed, but that he didn’t return to work after the meeting of May 11th 2025.  At the hearing, the manager said that the worker’s hours fluctuated and he had asked to reduce his hours in December, because he is a musician and he had started gigging.  In April 2025, the manager said that the worker 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 working hours of staff when there are less reservations.  It seems that the worker may have asked for more hours again when he was at work on Saturday, May 10th, because the manager 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 offered him some hours in the coffee truck but she said that he wasn’t interested in that option.

The manager said that the worker became agitated and said that he would have to look for another job.  She said that he complained 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.  The manager said that she never questioned the worker’s ability.  Before she ended the meeting, the manager said that the worker became aggressive.  He suggested that the only reason she wasn’t firing him and telling him that she hadn’t got hours for him was because she was afraid of the WRC, which she found very intimidating.  She said that she told him she wanted to end the conversation at that point. 

Concluding her statement, the manager said that she didn’t hear from the worker 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.

The manager said that she thought the worker would come back to work, and that some hours were available for him until the restaurant got busy again.  I asked her why the worker 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 worker for his holidays because he hadn’t done many hours that week.  She said that she doesn’t know why a cessation date given, and that it must have been inserted by the payroll person.

Was the Worker Dismissed?

The parties disagree about whether the worker was dismissed or if he left.  It falls to me therefore, to reach a conclusion about this matter in the first instance.

The worker 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, although it was open to him to indicate if he was available. 

The WhatsApp messages provided to me in advance of the hearing show that the relationship between the worker and his manager was friendly, with no animosity between them.  No issues were raised about the worker’s performance, and I am satisfied that the manager had no concerns about his performance.  From the payslips he provided and from the information on the timesheets, it is apparent that his hours flexed up and down, depending on his availability and the level of business in the restaurant.  From the timesheets, I can see that he worked 13 shifts in August 2024, followed by seven shifts in September, when he may have returned to college.  I note from the WhatsApp messages that there was no penalty and no negative response from the manager when the worker indicated occasionally 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 worker hours in the coffee truck. 

It is apparent from the information provided by the worker 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 manger had no intention of having such a discussion with him.  It seems 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 worker’s performance that would lead her to dismiss him.  I have reached this conclusion because she offered him hours in the coffee truck to carry him through to 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 ended up feeling intimidated by the worker’s behaviour.  Despite this, at the end of the meeting, the worker hugged the manager, a rather strange conclusion, considering the worker’s claim that he was dismissed.

The worker wasn’t given any hours after the meeting on May 11th and the payslip issued to him 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 worker 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 circumstances where there is a doubt about whether an employee was dismissed, 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 employer in this case did not “clearly and unequivocally” inform the worker that his contract was at an end.  However, when he didn’t return to work, it is my view that it was incumbent on the manager to contact the worker 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 worker 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 lack of contact from the worker, the onus was on the employer to formalise the situation with one of two options.  Firstly, the manager could have written to the worker 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 worker 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 worker 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.  Based on what the manager told me at the hearing, 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 worker 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 worker 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 worker was dismissed.

Was the Dismissal Unfair?

In the section above, I have described the circumstances that led to the worker not being offered any more hours in the restaurant, although I acknowledge that he was given the option of alternative work in the coffee truck.  I am satisfied that there were no issues with his performance and that he was not dismissed for any reason related to his performance.  I am satisfied also that the termination of his employment was unrelated to the fact that he injured his hand in October 2023, 10 months before he commenced working for the employer and that he hurt it again when he was working from 3.00pm until 9.00pm on New Year’s Eve 2024.

Having considered the circumstances described by the parties at the hearing of this dispute, I am satisfied that the dismissal of the worker was not unfair.  It is my view that he initiated his dismissal because he needed to work more hours than the hours available with this employer.  Based on the fact that no letter of dismissal was issued to him and that he was offered a job in the coffee truck, it is my view that it was open to the worker after May 10th 2025, to reverse his dismissal by indicating his availability for work.  

I have concluded that the dismissal of the worker was not unfair and I recommended therefore that the employer takes no further action with regard to this dispute.

Dismissal in doubt