ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000320
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00000458-001 |
28/10/2015 |
Date of Adjudication Hearing: 03/03/2016
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
I was cut. Broken glass was deliberately put in the sink and covered with dark sudsy water by the Manager. My right hand was punctured in several places. I was demoted twice and the manager abused me and my family. She refused on several occasions to serve us when the owner had invited my family and I to eat there as a treat to compensate me for coming into work on dozens of occasions in the middle of the night when guests were locked out or the fire alarm had gone off. She flat our refused service and my family were mortified. My mam is 73 and suffered a stroke. The Manager refused serve her even though we were personally invited by the owner She ridiculed me on a daily basis relentlessly with theft accusations and belittlement. Constantly accusing me of theft both in writing and orally both in the public arena. Theft of a tine scrap of chocolate, theft of money €28.50 etc etc. Over four hundred euro in back pay remains outstanding It is they who took my money. I was ridiculed stepped over twice and called a menopausal old jealous incompetent. I knew of much illegal carry on and when I threatened the Gardaí, the Manager reported me to An Garda Siochana claiming I am stalking her in her homestead, I do not know where she lives and have never been near her dwelling. |
In her submission to the Hearing, the Complainant confirmed that she did indicate to the business owner of the Respondent that she was terminating her employment there. However, she claimed that this was a constructive dismissal situation, as matters had developed in the workplace which left it impossible for her to continue working there.
Among the incidents/issues submitted in evidence by the Complainant in support of her constructive dismissal case were the follows:
The Respondent's manager was on a mission to get rid of the Complainant.
Failure to provide the Complainant with the password to access the bar till.
Failure to provide an appropriate float in the till for the Complainant's shift which resulted in her (the Complainant) having to get her son to go to local business premises for change. (The Complainant's son, who attended as a witness, corroborated this evidence.)
The Complainant was required to do the 3:00 PM – 10:00 PM shift on her own.
The Respondent's manager would regularly change the language setting on the work computer to a foreign language which resulted in the Complainant having to call an IT expert to resolve the issue. (The Complainant presented documentary evidence from the IT expert in question confirming his attendance at the premises to resolve the problem.)
Providing misleading information with regard to which rooms were available for sale to clients, resulting in already allocated rooms being sold by the Complainant.
The Complainant's duties were reduced to that of dishwashing and floor cleaning in the end.
The alleged deliberate placement, by the Respondent's manager, of a piece of a broken mirror in a sink full of sudsy water, which resulted in the Complainant receiving a cut to her finger that required medical attention. (The Complainant provided photographic evidence in support of this aspect of her complaint.)
The Respondent's manager sought to change the Complainant's shift start time from 3:30 PM back to 3:00 PM. The Complainant alleged that this was to facilitate the manager attending dance classes, despite the fact that, according to the Complainant, no such classes were available at that time on a daily basis in the locality.
The Complainant alleged that she could not attend a half an hour earlier due to the requirement to collect her son from school at 3:00 PM and, as a result, another staff member was hired to cover the shift from 3:00 PM to 4:00 PM. The Complainant further alleges that the Respondent attempted to increase this new staff member's hours from one to three by increasing her shift from 3:00 PM to 6:00 PM. According to the Complainant this was the final element in the Respondent's attempt to get rid of her (the Complainant) and it was at this point that she realised she could no longer continue to work in such circumstances.
At the Hearing, the Complainant confirmed that while she did put a derogatory comment in the work diary about the manager, she did not write it on the notice board. The Complainant also provided a detailed version of the events leading up to the involvement of the Gardaí, which differ from that presented in the written submission from the Respondent.
Respondent’s Submission and Presentation:
The Respondent did not attend the Hearing. However, on receipt of the original complaint application form which was submitted by the Complainant to the WRC, the Respondent provided a written submission.
In that submission, the Respondent stated that:
The Complainant commenced employment with the Respondent on 31 April 2014.
The allegations contained in the Complainant's written complaint were false.
The Complainant gave her notice verbally to the business owner on 2 May 2015. The Respondent stated that she was going to finish her shift that evening and was then leaving as she was not happy to work there anymore. The Complainant indicated that she had got another job.
The business owner had coffee with the Complainant on the evening she submitted her verbal notice. She indicated to the Respondent that she would submit her resignation in writing the following day, but she never did.
Before the Respondent finished her shift that evening, she wrote "outrageous and false allegations" about the manager in the staff book and on the staff notice board. The manager found these comments very distressing and had to take time off to come to terms with the matter.
Subsequently, due to insulting text messages sent to the manager and one of the other staff being harassed outside of the workplace by the Complainant, the staff became afraid and reported the matter to the Gardaí.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Issues for Decision:
The issue for decision is whether the Complainant was constructively dismissed from her employment with the Respondent.
Legislation involved and requirements of legislation:
The legislation involved in this case is the Unfair Dismissals Act, 1977
Decision:
Having carefully considered all of the evidence adduced, particularly that presented by the Complainant at the Hearing, it appears that a rather difficult and contentious situation arose between the Complainant and the Respondent, in particular the person carrying out the role of manager.
Given that the Respondent did not attend the Hearing, the detailed evidence presented by the Complainant is uncontested. Consequently, I am left with no option but to accept the Complainant's evidence as presented in a detailed oral submission at the Hearing.
Section 1 of the Unfair Dismissal Act defines a "dismissal" as:
(b) the termination by an employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer:
On the basis of the uncontested evidence presented at the Hearing by the Complainant, I am of the view that she had reasonable grounds for concluding that she could no longer continue to work for the Respondent.
Taking all the above into consideration, I conclude that the Complainant was constructively dismissed from her employment with the Respondent and I award her the sum of €1,500.00 in compensation.
Dated: 29 April 2016