A chef who was ‘shocked’ to discover a planning claim to turn the restaurant he worked for into offices has been awarded more than €21,000 in compensation, after the Workplace Relations Commission (WRC ) ruled that he had been unfairly dismissed.
adraic Casserly brought claims under the Unfair Dismissal Act, the Organization of Working Time Act and the Payment of Wages Act against Tribal Restaurant Ltd – doing business as bar and restaurant Tribeton in Galway, where he had been Executive Chef since August 2015.
His lawyers told the WRC that their client was told the restaurant would be closing “temporarily” due to the Covid-19 pandemic on March 15, 2020.
But on May 29 that year, Mr Casserly was ‘shocked’ to find planning permission was being sought to turn the restaurant into offices, the WRC heard.
On June 20, the company wrote to him saying the restaurant would remain closed “because it was not viable to open due to public health advice and restrictions that remained in place,” his lawyers said. administrators saying they would reconsider the position in August.
On August 25, Mr Casserly wrote asking for back pay but received no response, his lawyers said, and planning permission for the office conversion was granted on September 1.
But the company had still not “failed to inform him of the status of his employment as promised” by the end of August and had not responded to a letter from his lawyer in September.
Mr Casserly said in evidence that he was ‘upset’ that Tribal Restaurant Ltd was going to apply for planning permission without engaging with him and refused to answer his questions.
“The respondent’s actions were in effect a termination because the respondent refused to answer any questions the complainant had regarding his employment,” his lawyers argued.
In her decision, Adjudication Officer Louise Boyle noted that Tribal Restaurant Ltd and its solicitor attended an initial hearing in July 2021. The matter was adjourned at this stage, pending the passage of legislation to emergency last year allowing the WRC to be sworn in.
This came after a Supreme Court decision related to another case.
However, when the case was rescheduled for hearing in January 2022, there was no response from the company or its attorneys, MacSweeney & Company.
Plaintiff’s attorneys, Berwick Solicitors, said they were told by McSweeney & Co that they had withdrawn from the case, the arbitrator noted.
Ms Boyle noted correspondence from Tribal Restaurant Ltd denying the allegations and insisting staff had been laid off from March 15, 2020.
“It would have been uneconomical and financially unwise to reopen while the restrictions remained,” the company said in the written brief, which called Mr Casserly’s complaints “premature and ill-conceived”.
The arbitrator ruled that she was satisfied that the company had been notified of the hearing date.
‘The only sworn evidence I have to rely on is that of the complainant,’ Ms Boyle wrote, calling him a ‘credible witness’.
“I find it unreasonable that, in the circumstances, the Respondent did not engage with the Complainant about his questions,” Ms Boyle wrote.
“Given all of the circumstances, including the fact that the Respondent did not attend the hearing and that the burden of proof rests with the Respondent, I conclude that it was reasonable on the part of the Complainant to assume that his employment was terminated, that he was fired and that the termination was unfair,” she wrote.
Mr Casserly estimated his losses at €22,418, Ms Boyle noted, but found he ‘could have made more sufficient effort to seek other employment, including outside the hospitality industry’ , she wrote.
She awarded him 20 weeks’ pay, €17,308.20, for the unfair dismissal; reparation of four additional weeks of wages, €3,461.64 for unpaid notice and €692.33 for non-payment of public holidays – a total of €21,461.97 in compensation.