RESPONDENT’S

Submission
To
The Workplace Relations Commission

ADJUDICATION HEARING

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Wednesday January 17 , 2024

ADJ-00046799
(CA-00057574-001: Section 8 Unfair Dismissals Act 1977)

Complainant: Mr. Elisson Silva Santos

Respondent: Mercantile Entertainment Group

1. The Complainant, Mr Elisson Silva Santos, was employed by the Respondent as a

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Security Operative, from March 2 2022 until August 11 , 2023, when his
employment was formally terminated.

2. The Respondent was compelled to formally terminate Mr Santos’s employment as he

had failed to attend for work in the preceding 5 weeks, despite being rostered to do so.

In effect, he abandoned his employment.

3. The background to the termination of Mr Santos’s employment is alleged to relate to a

specific incident, which occurred at one of the Respondent’s venues in Dublin; The
George Night Club.
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At this venue on Wednesday, June 28 , 2023 an incident did occur. It involved a
situation in which Mr Santos requested a patron to leave the premises. It is clear from
an ensuing investigation, involving a review of CCTV footage, that Mr Santos used
unnecessary and inappropriate force to compel the patron to leave.

4. Following this incident, Mr Santos, who was spoken to by the venue manager on the
night, left the premises immediately afterwards without finishing his shift and without
authorisation or explanation.
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On Friday, June 30 , Mr Darragh Flynn, Operations Manager with the Respondent,
and General Manager of The George, met with Mr Santos to address his reported
behaviour. He pointed out that the behaviour displayed by Mr Santos towards the
patron concerned, was unacceptable, as was the fact that Mr Santos left the venue
 without seeking permission to end his shift early, and without explanation to the
manager on duty.
However, at the end of this meeting Mr Santos agreed that he would not, in the future,
escalate his behaviour in dealing with patrons to the level which had occurred on June
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28 .
5. On July 4 th th
, 2023, acting on the reported outcome of the June 30 meeting, Ms Holly
Kiely, HR Manager with the Respondent, issued a formal warning by email to Mr
Santos (Appendix 1).

In an immediate replying email Mr Santos rejected Ms Kiely’s correspondence and

claimed that the patron had assaulted him, and the venue manager had openly acted
aggressively towards him on the night.

6. In an email exchange on the same date, Mr Santos insisted that he had been “fired” on
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June 30 , and asked Ms Kiely how much he would be paid for accrued annual leave,
and notice. Ms Kiely, repeated that he had not been “fired” and stated “I have
discussed the contents (of his email) with Darragh who has confirmed you remain in
employment as security and Alan Breslin (security manager) will be in touch with
regards to your roster. Ms Kiely attached the formal warning referred to and attached
herein as Appendix 1.

7. In the context of a follow-up investigation; on July 6

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, 2023, Ms Kiely, accompanied
by a HR colleague, met with Mr Santos.

At this meeting, Mr Santos stated that Mr Flynn had “fired” him when he met with
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him on June 30 . He, reportedly, displayed quite a bit of agitation at this meeting.
Ms Kiely responded by advising Mr Santos that he had not been “fired”, and that
work would be rostered to work at other Group venues.

He did agree that he would talk with Mr Alan Breslin, the Respondent’s Group
Security Manager, in the week ahead.

8. Mr Santos subsequently exchanged ‘Whatsapp’ messages with Mr Breslin.

In an exchange on July 5th, 2023, the day before his meeting with Ms Kiely, Mr
Breslin advised Mr Santos that he would be rostered to work at Group venues other
than The George. In reply Mr Santos rejected work elsewhere, and repeated that he
had been “fired”.
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In a subsequent exchange on July 14 , 2023, Mr Santos advised Mr Breslin that he
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would not be available to work on July 14 or 15 . Asked to say why, Mr Santos
replied; “First because I was contracted to work at the George, Second Darragh fired
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me on 30 June 2023”
In reply, Mr Breslin advised; “You work for mercantile group. You were never fired.
Do you not want to roster from other venues?
Mr Santos replied; “I was and Darragh know this. We will see”.
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Mr Breslin and Mr Santos had similar exchanges on July 20 and July 21st.
(Appendix 3)

9. On July 24 th
, 2023, Ms Kiely issued Mr Santos with a second formal warning because
of his failure to attend for work as rostered in the two preceding weeks, and reminded
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him that in a letter dated July 18 , she had exhorted him to attend for work.
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Mr Santos had been paid for attendance per roster week ended July 9 . However, this
was in error, as Mr Santos confirmed that he had not attended during that week.

10. Mr Santos was included in security rosters up until week ended August 20 th
,2023.
However he failed to attend for any of his rostered duties.
It was on foot of this failure that Ms Kiely was compelled to formally terminate his
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employment, and did so, by letter dated August 11 , 2023 (Appendix 4)
In this correspondence, Ms Kiely advised Mr Santos that the termination of his
employment could be appealed. However, Mr Santos did not subsequently submit an
appeal.
11. By Email dated December 20 th
, 2023, Mr Santos repeated the allegation that he had
been fired, made a baseless complaint that he Respondent had demonstrated
xenophobia, and sought a compensation payment of €23,440.

12. In SUMMARY;
It is the Respondent’s position that Mr Santos was not dismissed.
Mr Santos in effect abandoned his employment,
As a result the Respondent was compelled to formally terminate his contract of
employment.
The Respondent believes that there is evidence that Mr Santos obtained alternative
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employment, and indeed he himself declared in an email dated July 5 , 2023 to Ms
Kiely, that ; “I was fired last Friday by Darragh and because of it I found a new
job….”
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It seems clear from Mr Santos’s email of December 20 , 2023, that his objective is
simply to leverage a compensation payment from the Respondent, and in doing so he
has decided to use the WRC’s adjudication services, as his ploy.

The Adjudicator is respectfully requested to decide that Mr Santos’s claim of unfair

dismissal must fail for the reasons given and the context as set out.

JRK Business Support & Employee Advocacy Services

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January 17 2024
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