Case Number: ADJ-00015882. Workplace Relations Commission

• Date: 28 May 2019
• Docket Number: ADJ-00015882
• Court: Workplace Relations Commission
• Parties: A Restaurant Manager v A Bar and Restaurant

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977 - 2015, these complaints were assigned to me by the Director General. I conducted a hearing on October 18th 2018 and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.

At the hearing, the complainant was represented by Mr Jamie Sherry of Miley and Miley Solicitors. The respondent was represented by Mr Peter Ryan, HR Consultant and the company’s Head of HR and Risk and another manager attended and gave evidence.

Background:

The respondent company is a well-known bar and restaurant group with eight venues in Dublin, employing more than 600 staff. On February 14th 2016, the complainant commenced employment as a waiter in a bar and restaurant in north Dublin. In November, he was promoted to the position of restaurant manager in an Asian-type restaurant on the first floor of the premises. In January 2018, the company decided to close this restaurant and the complainant was offered an alternative job in another venue. He declined this offer and he was made redundant on January 28th 2018. The complainant alleges that he was dismissed unfairly. He has also submitted complaints under the Organisation of Working Time Act 1997, claiming that he was required to work excessive hours, that his employer kept no record of his hours of work and that he was not permitted to take breaks.

CA-00020580-001: Complaint under the Unfair Dismissals Act 1977 Summary of Respondent’s Case:

In his submission at the hearing of this complaint, the respondent’s representative, Mr Ryan, said that the restaurant managed by the complainant was trading poorly and the management decided to close it down. The four chefs who were employed were transferred to other jobs in the company and the waiting staff were let go. With the closure of the restaurant, the job of manager also ceased to exist. The company’s area manager attended the hearing and he said that, on January 22nd or 23rd 2018, he met the complainant and told him of the decision to close the restaurant. He said that he understood that the complainant didn’t want to go back to being a waiter and he offered him a similar job in another venue on the same terms and conditions of employment. The complainant’s salary at the time was €33,800. In response, the complainant said that he wasn’t interested in being redeployed and that he would prefer to be given a redundancy payment. A copy of a text message that the complainant sent to the area manager was submitted in evidence. Outlining his request for a redundancy payment, he said. “…I kind of have my mind set on redundancy and taking a few weeks off to relax. I was hoping to leave on good terms from the group because I feel I might have future opportunities going forward with …the group. But now this whole situation is putting me in a very awkward position, like, I don’t want to have to start playing games with hr on this.” When he didn’t get a reply to this message, on January 27th, he sent another text message to the area manager: “Any word on that redundancy? My dad is advising me to talk to the head of his legal team about the whole situation, I told him it’s not at that stage yet. To be honest, my stress levels are through the absolute roof at the moment and all I want at this stage is to be able to take a few weeks off and gather myself. Going back to being a waiter now just isn’t an option for me, it would be a massive step back for me when I should be moving forward.” The respondent’s case is that, as the complainant had not completed two years of service, he was not entitled to a redundancy payment. On January 27th 2018, the area manager wrote to the complainant giving him one week’s notice of the termination of his employment because of the closure of the restaurant. The letter stated: “I understand you had expressed an interest in receiving a redundancy payment. However, as you do not have the requisite service under the Redundancy Payments Act, you are not entitled to such a payment. “Should you be interested in any alternative position of employment within the organisation, could you please write to me expressing your interest and I will seek to accommodate your request, should there be a suitable position available.” The restaurant was due to close on Sunday, February 4th. On January 28th, the complainant informed the manager of the bar and restaurant by telephone that he would not be returning to work. At 8.50pm, the general manager sent the complainant an e-mail with his roster for the last week of business and asked him to confirm if he would work the shifts for which he was rostered. In the e-mail, the general manger asked the complaint to let him know if he would be coming in to work “as a matter of urgency.” The complainant did not reply, but, at 2.00am, he sent an e-mail to the area manager, asking him to re-consider the decision not to give him a redundancy payment, “…as a bit of recognition for the work I’ve done for you over the past year, including all the overtime I have clocked up, the overnighters I’ve worked.” In this mail, the complainant explained why he thought he should get a redundancy payment: “It would be nice to be able to tell the locals and my regulars when I meet them …that I was looked after well in the closing rather than focus on the potential negatives, especially since my customers saw how hard I always worked and I was well received around the town. I’d much rather tell people I was treated brilliantly and that we all came to a mutual agreement on the closure…” For the respondent, Mr Ryan said that the closure of the restaurant is not in dispute, and neither is the fact of the redundancy of the job of restaurant manager, which was the complainant’s job. The complainant’s employment was terminated because the restaurant where he worked as a manager was closed down due to poor trading. He did not have to lose his job because of this closure, as alternative positions were available. He rejected the option of redeployment because he said that he wanted to take a few weeks off to relax and he left without working his notice. The respondent’s view is that the claim for a redundancy payment is “an attempt to extract compensation” and has no basis in fact.”

Summary of Complainant’s Case:

Opening his case for he complainant, Mr Sherry said that the restaurant where the complainant worked was a brand name business. Although he could have taken up the option of work in another restaurant, the location where he was offered a job, in Dublin west, did not suit him. He was concerned that if the restaurant was quiet, he could have been sent home. He also felt that the job he was offered was a lower-level job of assistant manager. When he was offered this job first, he was informed that the pay was €12 per hour, and only later, he was told that he would be paid the salary he was on of €33,800. The complainant said that he got no formal offer of an alternative job. Mr Sherry said that, in deciding to close the restaurant, the management did not consult with the complainant, and the letter of February 27th 2018 was issued after the decision to make him redundant. For this reason, he had no opportunity to have an input into the decision or to suggest ways to avoid redundancy. Mr Sherry said that there is again a restaurant on the first floor of the...