Case Number: ADJ-00026363. Workplace Relations Commission

Court:Workplace Relations Commission
Docket Number:ADJ-00026363
Procedure:

These complaints were submitted to the WRC on January 11th 2020 and, in accordance with section 41 of the Workplace Relations Act 2015 and section 8 of the Unfair Dismissals Acts 1977 - 2015, they were assigned to me by the Director General. Due to the closure of the WRC as a result of the Covid 19 pandemic, a hearing was delayed until August 26th 2020. On that date, I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.

The complainant was represented by Ms Cathy McGrady BL, instructed by Ms Alison Martin of DWF Solicitors. The respondent was represented by Mr Dave Doran, a human resources advisor. Mr Doran was accompanied at the hearing by the proprietor of the business.

Background:

The complainant commenced employment as a manager in the respondent’s public house on December 1st 1999. His employment was terminated on November 20th 2018, when his previous employer leased the premises to the respondent. However, in early December 2018, the complainant decided to come back to work. He was dismissed by the respondent on January 7th 2020.

Following differences regarding what he considered to be a staff shortage at Christmas 2019, the complainant threatened to resign. In the end, on January 3rd 2020, he was given notice of the termination of his employment and he finished up on January 7th 2020. His case is that his dismissal was unfair or, in the alternative, that his job was made redundant and he is entitled to a redundancy lump sum. The respondent’s case is that the complainant resigned.

On behalf of the complainant, Ms McGrady argued that his employment is continuous from December 1st 1999 and that he transferred to the respondent’s business in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE). On this basis, she claims that he has 20 years of continuous service. The respondent’s position is that the complainant left his job on November 20th 2018 and that his employment with the new entity commenced on December 3rd 2018. If this position is correct, then, when the complainant’s employment was terminated, he had just over one year of service.

The complainant claims that he was unfairly dismissed, and he is seeking redress under the Unfair Dismissals Act 1977. In the alternative, he claims an entitlement to a redundancy lump sum, in accordance with the provisions of the Redundancy Payments Act 1967, taking account of his service since December 1999. To address all of the issues raised in these complaints, I will proceed in the following sequence:

1. The evidence of the respondent;

2. The evidence of the complainant;

3. The application of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE);

4. Summary of the respondent’s position regarding the claims under the Unfair Dismissals Act and the Redundancy Payments Act;

5. Summary of the complainant’s position;

6. Findings and decision concerning the complaint under the Unfair Dismissals Act 1977;

7. Findings and decision concerning the complaint under the Redundancy Payments Acts 1967;

8. Findings and decision concerning the complaint under the Terms of Employment (Information) Act 1994.

1: Evidence of the Respondent:

The proprietor did not provide a written submission and his case that the dismissal of the complainant was not unfair is grounded on his direct evidence. For convenience, I will refer to the proprietor as “Mr P.”

Following his retirement from the hotel business, Mr P was approached by the owner of the pub who asked him to consider taking a lease on the premises with a view to purchasing it in the future. Before he commenced trading, he said that the previous owner told him that the assistant manager was leaving and that he would come to an agreement with the manager, the complainant in this case.

On November 20th 2018, Mr P was introduced to the complainant by the previous owner who told the complainant that he had agreed to lease the pub to Mr P. He said that the complainant had a long discussion with the previous owner’s accountant and he finished up that day. Mr P understood that he had a job lined up in another premises.

About two weeks later, Mr P said that he was contacted by the previous owner who informed him that the complainant hadn’t got another job and that he wanted to come back to work. Mr P agreed that the complainant would return to his job as a manager on the same terms and conditions as he enjoyed with his previous employer. He went back on the same weekly pay of €1,206 per week. In an email from Mr Doran following the hearing, he said that the complainant returned to work in the pub on December 3rd 2018, but that there was no continuation of employment from his job with the previous owner.

During the course of 2019, Mr P said that he questioned the complainant about the wage bill in the pub, which he said was out of line with expected costs. When he challenged the complainant, Mr P said that he responded by threatening to leave, but that he generally changed his mind and remained working. He said that this occurred at least twice during 2019.

Mr P said that he went to the pub on the evening of Friday, December 20th 2019, which he expected to be one of the busiest nights of the year. He found that a bingo tournament was in progress, which, in his view, was not the kind of event he expected to see on the Friday before Christmas. He said that the complainant’s wife ran the bingo, which was normally held on Tuesdays. When he arrived in the pub, Mr P said that the complainant approached him shouting, “disaster! disaster!” He complained that the bingo players couldn’t hear the numbers being called out because there were too many people in the bar. He said that he announced that he was leaving and that he would finish up at Christmas.

Mr P said that he decided that he would take on the manager’s job himself and he met the complainant in a different pub on Sunday, December 29th and informed him of this decision. He met him again on Friday, January 3rd, to discuss a handover. On Saturday, January 4th however, when he went to the pub, the complainant asked to speak to him and told him that he wasn’t happy and that he wanted to be made redundant. Mr P said that he responded that redundancy was a matter for the previous owner.

A final meeting took place on Tuesday, January 7th 2020. The complainant was accompanied by his daughter, who works as a payroll officer in another company. The complainant again asked for a redundancy payment. Mr P said that he told him that he had broken his service in November 2018 and that redundancy was a matter for the previous owner.

Cross-examining of the Proprietor

Mr P said that he didn’t consult with the staff in the pub before he took over in November 2018. He accepted that the complainant returned to work in December and that, in the following months, he regularly complained of being short-staffed. Mr P agreed and that he had constant discussions with the complainant about the rosters.

On the night...

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