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Waiter wins constructive dismissal case after boss burps in his face

Makbool Javaid, Partner - Simons Muirhead & Burton

In Simplicio v Alfona Limited, Edgar Simplico, a waiter at an Italian restaurant, was unfairly dismissed after his boss swore at him and burped in his face.  Mr Simplico was highly critical of Mr Cretella and his background experience. Mr Cretella decided to take a hands-on approach to the restaurant in order to learn the business. Mr Simplico was frustrated that the existing staff had to teach Mr Cretella.

Mr Simplico said that Mr Cretella “had the habit of” lying down on one of the restaurant’s side benches in full view of customers while they were eating. He also gave evidence that Mr Cretella walked around with no shoes while serving in the restaurant and that customers noted this and expressed their displeasure. He stated that he would come across Mr Cretella’s used toothpicks and orthodontic brushes littering the bar area and it was left to him and colleagues to clear these away.

He also gave evidence that he found Mr Cretella “disgusting and puerile”. He said that on a number of occasions Mr Cretella called him over and deliberately burped loudly, sometimes into his face. In August 2020 a furious row broke out between the two in front of diners after which Mr Simplico resigned.

The Tribunal ruled that Mr. Simplico’s resignation was as a result of constructive dismissal which meant that it was unfair. Mr. Cretella’s behaviour towards Mr. Simplico was unreasonable conduct.

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