Case Number: ADJ-00028018. Workplace Relations Commission

Docket NumberADJ-00028018
Hearing Date04 November 2020
Date01 January 2021
CourtWorkplace Relations Commission
RespondentA Public House
ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028018

Parties:

Complainant

Respondent

Anonymised Parties

A Bar Tender

A Public House

Complaints:

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035932-001

29/04/2020

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

CA-00035932-002

29/04/2020

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

CA-00035932-003

29/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00035932-004

29/04/2020

Date of Adjudication Hearing: 04/11/2020

Workplace Relations Commission Adjudication Officer: Catherine Byrne

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...

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