A waiter who claimed his boss burped in his face and passed wind in front of customers has won his claim for constructive unfair dismissal.
Claimant Mr Simplicio resigned from his role at L’antipasto restaurant in Battersea in September 2020, following a series of incidents that included being subjected to puerile behaviour and shouted at by restaurant owner Mr Cretella.
He later brought a claim of constructive unfair dismissal against his employer, Alfona, which operates the restaurant.
Simplicio accused Cretella of deliberately burping in his face, loudly breaking wind and wafting the smell towards him, asking him if he wanted to see a photograph of his faecal matter, and loudly clapping his hands near him and shouting “come on” even though the claimant told him he didn’t like this.
He also told the tribunal that Cretella regularly walked around the restaurant without shoes, laid down on a bench during service on several occasions, looked at social media instead of working, did not contribute to cleaning tasks, and left toothpicks and dental floss on work surfaces.
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The claimant said he found Cretella’s behaviour offensive, while Cretella told the tribunal that he had a “childish” sense of humour and had a medical condition that meant he often broke wind.
Following the introduction of a new payslip system in 2019, the claimant told Cretella that he had been underpaid. Cretella was initially dismissive, but in February 2020 he agreed to fix it, however the claimant told the tribunal he did not.
Simplicio was furloughed for three months in spring 2020 and planned to take three weeks of annual leave in August, which had been booked earlier in the year. This was a source of frustration to Cretella, as the restaurant had only just opened and was busy with the government’s Eat Out to Help Out scheme.
In July 2020, Cretella shouted and swore at the claimant when he raised a concern about a missing safe key and asked the Cretella to buy bread.
The claimant left work that day feeling shaken and did not turn up to his shift later that evening, claiming he was unwell with stress and anxiety. He was signed off work by his GP.
In a meeting on 1 September 2020, Simplicio raised his concerns with Cretella’s behaviour, management of the restaurant and continued underpayment of wages, and handed in his letter of resignation. Cretella apologised for his behaviour.
In early October 2020, he received back pay of £2,171.34 for missing wages.
The employment tribunal found that Cretella’s childish behaviour amounted to inappropriate and unreasonable conduct, but was not enough to seriously damage the trust and confidence in the employment relationship. However, the continued underpayment of wages and shouting and swearing at the claimant did.
“Not paying the claimant his full pay on time is both a breach of the express term of the claimant’s contract of employment and the implied term of trust and confidence as it is so serious as to seriously damage the relationship of trust and confidence,” said Employment Judge Budge in the London South Employment Tribunal’s judgment.
“Mr Cretella could have asked the accountant to look into the matter and make the appropriate back pay as soon as possible but he did not do so.”
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The tribunal told both parties to agree compensation for unfair dismissal. If they cannot agree, it will be discussed at a further hearing.
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