Waiter unfairly dismissed after ‘puerile’ boss ‘burped in his face’, tribunal rules

Other ‘unreasonable’ behaviour including swearing at claimant and failing to investigate missing pay contributed to breakdown in employer-employee relationship

An employment tribunal has ruled that a waiter at an Italian restaurant was unfairly dismissed after his boss swore at him, saying “take your f***ing money and f***ing go”.

The London South employment tribunal found that this, as well as a breach of contract through missing wages, led to a breakdown in trust and confidence between Mr Edgar Simplicio and his employer, Alfona Limited, meaning his subsequent resignation amounted to a constructive dismissal.

The tribunal also heard Simplicio was subjected to “unreasonable” treatment, including his boss burping in his face and wafting a fart towards him.

However, it was the incidents of shouting and the missing wages that were found to have seriously damaged the employee-employer relationship.

Simplicio was a waiter at London-based restaurant L’antipasto, operated by Alfona Limited. His employment started in September 2007, at which time the business was owned by Alfonso Cretella. In October 2016, ownership was transferred to Alfonso’s son, Alessandro Cretella.

The tribunal heard Alessandro Cretella had reflux and oesophagitis which caused him to have excessive gas, and he often could not control when he burped or broke wind – a problem Simplicio knew about.

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However, Simplicio also told the tribunal that he found Cretella “disgusting and puerile” and claimed that on a number of occasions Cretella called him over and deliberately burped loudly, sometimes into his face. Cretella denied this. 

Simplicio also said that Cretella broke wind loudly in front of customers and wafted the smell towards him while grinning, which Cretella denied, saying he had “a childish sense of humour”.

Simplicio also told the tribunal that Cretella asked if he would like to see a photo of his faecal matter, which Cretella also denied happened.

The tribunal concluded that this behaviour was “inappropriate” and amounted to unreasonable conduct, but that simply acting in this manner was not sufficient to “seriously damage” the relationship of trust and confidence.

Judge Burge also said a “reasonable person” would have said they did not find these things funny and asked for the behaviour to stop.

Around the middle of 2019, a new payslip system was introduced and Simplicio raised the issue of missing pay, telling Cretella that although he was contracted to work 25 hours per week, he was only being paid for 22.5 hours.

In February 2020, Cretella agreed Simplicio's pay was incorrect and the two agreed that Simplicio would work out how much back pay he should be paid, but he failed to do this. The tribunal heard that in April, while Simplicio was furloughed due to Covid, Simplicio called Cretella at home, and Cretella said he would ask the accountant to look into the pay. However Cretella said he did not recall this.

Simplicio also gave evidence that, during the call, Cretella agreed that the process of calculating his back pay could be put off for a while.

Then, around the end of July and early August 2020, two incidents led to Cretella shouting and swearing at Simplicio. On 31 July, Simplicio waited until Cretella arrived in the evening to ask him if he had the key to the safe which stored the cash float, rather than calling earlier on in his shift. The next day, on 1 August, Simplicio did not call Cretella to ask if he could buy bread for the day but only asked when Cretella called to say he was running late. 

The tribunal heard that Cretella said while on the phone, “You don’t call me about the f***ing keys and now you don’t call me about the f***ing bread.”

When Cretella arrived at the restaurant, there was an exchange between the two where Cretella was heard in a recording to say “f*** off f***ing s***… go, go away. Had enough of it... take your f***ing money and f***ing go”. The claimant responded, “I can’t have you speaking like that to me”.

Simplicio did not go into work for the evening shift because of stress and anxiety, the tribunal heard. He was then signed off work for stress and anxiety for a week until 10 August 2020, when he then went on holiday for three weeks.

On 1 September 2020 a meeting was held between Cretella and Simplicio where the two discussed the various behaviours and incidents that had taken place, including the issues around Cretella breaking wind;, the shouting incident; and the missing pay.

Cretella did not want Simplicio to resign and apologised for shouting, saying it was the only time he had spoken to him in this way during the time they worked together. The tribunal also heard that Cretella said he was going to pay Simplicio his missing wages but had been waiting for details to investigate.

However, towards the end of the meeting, Simplicio handed Cretella a letter of resignation.

The tribunal noted that Simplicio did not affirm or waive the breach of contract caused by the missing pay and made it clear that he was resigning in response to the breaches.

The tribunal also ruled that Simplicio could not be expected to live with the behaviour Cretella displayed during the shouting incident, and that his conduct was so serious as to be likely to seriously damage the relationship of trust and confidence.

The judge added there was “no reasonable and proper cause for such an extreme reaction.”

As such, Simplicio’s resignation amounted to a constructive dismissal because the respondent accepted the resignation and there was no fair dismissal process.

Yvonne Gallagher, partner at Harbottle and Lewis, said the case serves as a useful reminder of the approach tribunals must take to claims of constructive dismissal based on employer conduct. 

“The case underscores the fact that not every poor act on the part of the employer will amount to constructive dismissal,” she told People Management.

Gallagher added that “such claims remain high risk for employees in the absence of non-payment of wages and very direct use of offensive language.”

Simplicio’s compensation was limited to six months from the date of his dismissal.

The tribunal said it would decide remedy for unfair dismissal at a further hearing on 2 December 2021 if the two parties could not come to an agreement. A compensation hearing will also be held at a later date.

Alfano Limited declined to comment. Simplicio could not be reached.