Case Number: ADJ-00028018. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00028018
Procedure:

These complaints were submitted to the WRC on April 29th 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 November 4th 2020. On that date, I conducted a hearing using remote video conferencing. I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant represented himself and the respondent’s managing director also represented himself.

Background:

The respondent owns two public houses in Dublin employing around 40 people. I will refer to them as “Pub 1” and “Pub 2.” On February 17th 2017, the complainant started working Pub 1. A few months after he started, he agreed to work additional hours in Pub 2 and, by the time his employment was terminated, he said that he was working 20 hours in Pub 1 and around 30 hours in Pub 2. The respondent disputed the hours that the complainant claimed he worked in Pub 2, and he said that he worked around 16 hours a week there. The complainant was on two different rates of pay, earning €12.00 per hour in Pub 1 and €11.00 per hour in Pub 2. In correspondence that he sent to the WRC after the hearing on November 4th 2020, the complainant said that he earned €4,129 from January 1st to March 14th 2020, when all bars were closed due to the Covid pandemic. This is a period of 10 weeks and it comprises €2,952 for 246 hours worked in Pub 1 and €1,777 for 107.5 hours in Pub 2. Based on this evidence, it would appear that, for the first 10 weeks of 2020, the complainant worked an average of about 25 hours per week in Pub 1 and 11 hours a week in Pub 2. The complainant said that he discovered that he was dismissed on April 8th 2020, when he didn’t get paid through the temporary wage subsidy scheme (TWSS).

In his evidence, the respondent said that the complainant resigned on March 19th 2020, when he sent him a text message in which he said, “now would be the least disruptive time for me to part ways.” The complainant claims that he meant to resign only from Pub 2 and that he wanted to continue working in Pub 1. The respondent’s case is that the complainant resigned and that he was not dismissed. As this matter is in dispute, the first issue I must consider is, was the complainant dismissed?

CA-00035932-001: Complaint under the Unfair Dismissals Act Summary of Respondent’s Case:

At the hearing, the respondent said that the complainant worked mainly in Pub 1, generally for five nights a week from 10.00pm or 11.00pm until closing time. A few months after he started working there, the respondent said that he asked the complainant to cover some shifts in Pub 2, which is a separate business. He said that the complainant worked in Pub 2 to cover the days off of the bar tender there. He said that 75% of his hours were in Pub 1.

The respondent referred to an injury suffered by the complainant when he was assaulted as he was closing up in Pub 2 on November 13th 2019. He said that he returned to work two weeks later, and he seemed to be happy to continue working. In December 2019, the complainant initiated a personal injuries action as a result of the assault. The respondent said that both pubs are insured and that his insurance company will manage the injuries claim. In early 2020, the respondent said that he was advised by his insurers that his employees in Pub 1 could not also be rostered in Pub 2.

On March 14th 2020, all pubs in Ireland were closed due to the Covid pandemic, and the complainant was paid through the employer’s Temporary Wage Subsidy Scheme (TWSS).

Following the hearing on November 4th 2020, the respondent sent a copy of text messages between him and the complainant from March 19th to April 8th 2020. This string of text messages shows that, on March 19th, the complainant wrote to the respondent as follows:

Hi … if the insurance company have effectively forbidden me from working in Pub 2 then I think that’s the case either way so it’s best to proceed as before. (And it may mean I’m entitled to back pay given the lower rate and no breaks in Pub 2, (another employee) was paid the same amount for his short stint). It’s not without its risk either: an over-eager Guinness delivery man nearly hit me with a keg once. I heard there was a €2m pay out to a cellar man in the Long Hall for catastrophic injuries suffered for the same reason. Plus now would be the least disruptive time for me to part ways.”

The complainant then mentioned some cleaning issues and he confirmed the hours worked by three employees the previous week. He finished his text message as follows:

I can drop my keys back into (name of employee) later on or tomorrow morning if you want. €XXXk from Dec 2018 to Mar 2020 so not a bad run all the same.”

On April 3rd, the respondent responded to this text message:

Hi … Sorry about not replying earlier. I had intended to reply but then (a manager) suggested the 3 of us meet to see if you would change your mind about no longer wanting to work for me. It’s a pity about the parting of the ways but I respect your decision and will make sure you are paid all holidays due to you. Best of luck in your new Sales venture, it sounds like you are going to be very busy. If you ever want to change your mind or want to meet up let me know. In the meantime, stay safe.”

The respondent said that he knew the complainant went to Germany for an interview in December 2019 and he did not expect that, as someone with a master’s degree, he would remain working as a bar man. He said that he heard that he got the job with the German company.

On April 7th, in response to the message above, the complainant sent a text message to say,

I’m still in Pub 1… Decision only related to Pub 2 as I’m not insured to work there and being there officially would make things more complicated regarding tax credits, emergency tax, etc. and plus this period is the least disruptive time to let someone else take the reins. Thanks.”

Pubs remained closed at this stage and later the same day, the complainant sent another text message, complaining that he hadn’t been paid since March 27th and that it appeared that he was taken off the TWSS.

The respondent replied the following day, letting the complainant know that he was in fact removed from the payroll, on the basis of his statement that it was “time for me to part ways.” The respondent said that he thought this meant that he had resigned. He said however, that the text message of the previous day had clarified the situation. The respondent went on to explain to the complainant that one third of the employees were on the TWSS...

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