Sitting Tree Ltd t/a Harbour Bar v Javier Fernandez Torres

• Jurisdiction: Ireland
• Judgment Date: 28 November 2022
• Judgment citation (vLex): [2022] 11 JIEC 2805
• Docket Number: FULL RECOMMENDATION ADJ-00035331 CA-00046495-003 DETERMINATION NO. TED2215 SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014
• Court: Labour Court (Ireland)

PARTIES:

Sitting Tree Limited t/a Harbour Bar

and

Javier Fernandez Torres

FULL RECOMMENDATION

TE/22/46

ADJ-00035331 CA-00046495-003

DETERMINATION NO. TED2215

SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014

Full Court

DIVISION:

Chairman: Mr Haugh

Employer Member: Ms Doyle

Worker Member: Mr Hall

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision No(s)ADJ-00035331 CA-00046495-003

BACKGROUND:

2 2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 28 August 2022 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 25 November 2022. The following is the Decision of the Court:-

DETERMINATION:

Background to the Appeal

3 This is an appeal by Mr Javier Fernandez Torres (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00035331/CA-00046495-003, dated 10 August 2022) under the Terms of Employment (Information) Act 1994 (‘the Act’). Notice of Appeal was received on 28 August 2022. The Court heard the appeal (along with two associated appeals – TE/22/44 and TE/22/45) in Dublin on 25 November 2022. Both Parties furnished the Court with comprehensive written submissions which the Court took as read.

4 The Complainant was employed by Sitting Tree Limited T/A Harbour Bar (‘the Respondent’) as a bartender from 7 June 2021 until his employment terminated on 31 September 2021, the Respondent having determined that he had not successfully completed his probationary period and was not a good fit for the business. In the period immediately prior to his dismissal, the Complainant worked on average sixteen hours per week and was paid €12.00 per hour.

5 The Complainant alleges that the Respondent penalised him within the meaning of section 6C of the Act in retaliation for the Complainant's attempt to refer the issue of his working hours to conciliation at the Workplace Relations Commission. The Respondent submits that its decision to terminate the Complainant's employment during his probationary period was due to his lack of flexibility with regard to his working hours and his unavailability to work on certain days of the week.

Discussion and Decision

6 It is well-established in the case law of this Court that the test which must be satisfied in any claim of penalisation is the ‘but for’ test: i.e. it must be established that the detriment which the Complainant alleges would not have occurred but for the protected...