ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000787

Complaints for Resolution:

Date of Adjudication Hearing:   12 April, 2016, 13 June, 2016, and 10 October, 2016.

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 , Section 8(b) of the Unfair Dismissals Act, 1977, Section 79 of the Employment Equality Act, 1998,Section 27 of the Organisation of Working Time Act, 1997 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

                                                   A Kitchen Porter V A Hotel

Complainant’s Submission and Presentation:

The complainant is a Hungarian national who was employed as a kitchen porter at the respondent hotel from 26 May , 2014 to 29 August 2016. She was paid 8.65 euro per hour. The complainant has claimed that:

1 She was unfairly dismissed by the Respondent on 2 September 2015.

2 She was discriminated against on the grounds of race in relation to her conditions of work.

2(a) that she was victimised.

(b) The claim for discriminatory dismissal was withdrawn at the outset.

4 That the complainant was not provided with a contract of employment. While stated on the complaint form, this complaint had not been allocated a case number to accompany this complaint.

5 That the complainant did not receive her minimum notice

Her complaints were received by the Workplace Relations Commission on 20 November, 2015. Counsel for the complainant submitted that the complainant had reduced English and should be regarded as a vulnerable worker .

Evidence of the complainant:

Dismissal:

The complainant relied on a Hungarian interpreter in giving her evidence .The complainant had been on sick leave during August 2015 and had confirmed her intention to resume work on 27^th August. She fell ill on 28^th August and was not in a position to go to work. She delivered her medical certificate to the hotel on 1 September, 2015; the following Tuesday .There was nobody at reception, so she handed it to a manager. She was unfit for work.

Later on 2 September, the owner called her, asking why she had dropped off a cert when she was no longer working at the Hotel. He stated that he had called her doctor and had addressed with her that the complainant was no longer employed at the hotel.

The complainant confirmed that she intended to resume work when she was better and the owner didn’t believe her .She received a letter from the respondent confirming her termination of employment along with her P45.

“On Saturday, 29^th August, the head Chef received a call from you at 4.20pm informing him that you would not be returning to work anymore. We thank you for your service and will forward on your P45 in due course “

She considered herself dismissed from her employment.

The complainant had worked at the hotel previously in 2013.

During cross examination,

The complainant denied that she met the Hotel manage outside work on a regular basis. She secured her job at the hotel via the Head Chef, Mr C, who was a friend of hers.

She denied that she had sought holidays during August. She had a period of sick leave which emanated from a vomiting episode between 7 and 9pm on 28^th August .She stayed in bed .She rang work the next day at 4.10pm .She submitted that she told the Head Chef that “I don’t go to work, as sick “and then she was ill again .That was the extent of her conversation in Hungarian with him.

The complainant denied that Mr C had any reason to get rid of her .Her period of illness ceased on Monday, August 31 and she tried to obtain an appointment with her GP .The only appointment she could get was on Tuesday morning, September 1 .She admitted to still feeling ill but felt well enough to go there to see what the problem was. She denied that the visit was just to obtain a cert .She denied that she had resigned .She had not received social welfare as was claiming with her husband.

In response to questions from the adjudicator, she confirmed that she had not appealed the decision as she approached her solicitor on September 2. She had not been given a roster for the week of September 1 onwards. There were 10 -15 different nationalities working in the Hotel, Hungarian, Canadian, Irish, French and Polish among them.

Discrimination:

The complainant described being one of three Hungarian kitchen porters. Her role involved washing dishes, helping chefs and attending the Laundry. She submitted that she had not been treated equally amongst kitchen porters .The Hotel Manager sought her out to snap her fingers at her, which she interpreted as an order to work faster .She tried to complain To Ms G M (the Hotel manager) that she didn’t like the way she spoke to her but Ms GM did not have the time to discuss.

She gave an example where she was told to carry plates upstairs and when she sought the destination , Ms GM became angry and accused her of not “ knowing anything “ . She recalled Ms GM shouting at her a lot dependant on her mood. She submitted that Irish staff was treated better as Ms GM spoke differently with Hungarians on a “do this “and Do that “basis .The complainant had attempted to address this by telling her that they were not animals.

On one occasion, the owner and his wife entered the kitchen .She understood they were drunk. She was directed to clean glasses in the coffee section .The waiter was cleaning cutlery and the complainant told the owner that the waiter would do it in a minute. She was told that it was her job and does it straight away .She was, at that time washing a big dish in the sink. This was followed by the owner’s wife telling her to clean the cake fridge immediately as her job was at risk if she didn’t complete the task .The complainant stopped what she was doing and cleaned the fridge.

The complainant submitted that she was at the lowest level and “everybody was my boss” She heard Ms GM state that “we don’t want Hungarian gangs in the kitchen” There were two Hungarian chefs, three Hungarian kitchen porters and three Hungarian cleaners .She aware that a number of the Hungarian staff had since left the Hotel, including Mr C, the head Chef.

She described the effect working at the hotel had on her and that she submitted that she was just half a person and did not feel normal.

During cross examination, the complainant confirmed that she had a good working relationship with Mr C .She was aware that he had spoken behind her back, by giving the opinion that she was too slow.

Mr SC (Sous Chef) was second in command to Mr C and spoken English was encouraged in the kitchen for Mr SC sake .She worked with Mr SC 80% of the time and she did not have a difficulty with him.

The complainant confirmed that the owner was always smiling and did not discriminate against her. The episode in the kitchen in May 2015 involving his wife started the problem. It was a normal weekday after closing around 10pm. The owner’s wife wore a white trousers and shirt.

The complainant confirmed that she followed the instructions given by the General Manager. She had raised her concerns about her treatment sometime between May and August 2015 with Mr C but she had not put anything in writing .She asked Mr SC whether it was normal to have fingers snapped at her as she found it disrespectful. She submitted that Mr SC stated that it was not normal. There was another episode involving Ms GMs request for a tray, where she clicked her fingers. The complainant sourced the tray and resumed her work , so she actually did not hand it to her .The complainant stated that she asked Ms GM not to snap her fingers and she heard a response “ I don’t have time for this “

In response to the question “when were you treated differently? “The complainant responded over a period of 3, 4, 5 months .She described that she became somewhat withdrawn. Solicitor for the respondent put a question to the complainant that Ms GM had discovered her in an embrace with a Chef? This was denied by the complainant but she confirmed that there was coolness from Ms GM post this episode. She spoke differently to her and singled her out by name .She had had a discussion with her post the “snapping episode” but the complainant did not consider the issue resolved.

The complainant confirmed that she received orders from Ms GM approximately once a week and she considered that she had been victimised through exposure to the “finger snapping “episode.

Terms of employment Claim

The complainant sought to include this claim. The complainant submitted that she had not been furnished with a statement of her terms and conditions of employment in accordance with Section 7(3) of the Terms of Employment (Information) Act 1994. The complainant submitted that it had been referenced on the complaint form and that she should not be disadvantaged by its exclusion at hearing. Louth VEC V the Equality Tribunal l [2009] IEHC 370 was cited as authority in support.

The complainant did not initially remember receiving a contract in Hungarian .She recalled later in the hearing that Hungarian contracts may have been in existence for the five Hungarians on the staff but she had not signed the document.

Hours of Work

The complainant submitted that that she did not get proper rest breaks on a daily and weekly basis and on occasion during the summer season she was expected to work shifts of up to 14 hours with no adequate break periods. This caused her health to suffer.

The complainant gave direct evidence on the following:

Sometimes, she worked from 10 am up until 1 am -2am .She described that the roster for the week ahead was published every Sunday .She sometimes worked for 5 days but mainly 2-3 days .She did not have structured breaks .Her role entailed trips to the laundry every 1.5 hours and every third hour, she availed of a smoking break. The Chef made sandwiches for the kitchen porters and the complainant use to eat them where she washed dishes as there was nowhere to sit down. There was a nominated dining area but she didn’t have time to go there .When asked whether she had ever complained of not having breaks? She stated she had raised it with Mr C but he couldn’t do anything.

During cross examination the complainant confirmed that there was an informal approach to breaks taken in the kitchen. She recalled that one of the housekeepers had taken an excessive period in breaks and Mr SC had to go and get her. She denied that she had ever requested to increase her hours. She stated that her only other job was housework. She worked more than 3 days a week at the hotel.

She denied that she had been treated fairly and kindly by the hotel in the wake of a “fainting episode” She stated that she believed that she had been treated normally.

She had never seen a holiday request form and was not aware of any policies in relation to her employment.

Evidence of Mr KP1 (Kitchen Porter)

Mr KP1 had worked at the hotel for just over a year. He told the hearing that he had never had breaks. He denied going to the staff room. He had sandwiches beside he sink as only waiters went upstairs to the staff room.

He confirmed that he had raised the issue with Mr C who told him that the owner was not flexible .He submitted that Ms GM talked down to the complainant . He had witnessed the “snapping fingers “episode and was intent on complaining but he knew that the complainant had raised the matter herself.

He recalled that the complainant presented as very stressed at the beginning of August 2015, He saw her crying outside the smoking area.

He confirmed that Mr C placed the roster for the week ahead on the “Bain Marie” after 3 pm most Sundays.

During cross examination, Mr KP1 confirmed that he had seen Ms GM snap her fingers twice at the complainant after weddings .He was aware that the complainant approached Ms GM regarding this and he was called in for a meeting the next day.

He was aware that the complainant had complained at least 15 times to MR C who told them that they “ knew where the door is “ . He confirmed that he was not sent to breaks and had to ask for them. One week he worked 72 hours,

He raised the issue of the extended long day to 13-14 hrs directly with the owner and he was given time off after the complainant left.

He was working on the day the complainant left .He knew that she had returned with a doctors Note and she was told that she couldn’t resume work. The staff were told that she was sick Mr .KP2 was also in attendance that day .The complainant was due to take over from him at 4 pm .He did not hear the phone .He was sharing a house with the complainant at the time of employment .

When asked to explain about the meeting he referred to with the owner and Mr C, he stated that it was directed on hours of work and break times.

Evidence of Mr C 2

Mr C 2 was next in command to Mr SC. He worked at the hotel from June 2014 to August 2015.He did not have a contract, nor was he familiar with any employment policies. He was content to take up any issues he had with Mr C.

He knew that KP1 and the complainant were angry at the manner in which Ms GM spoke to them and snapped her fingers .He was aware that kitchen porters never went upstairs to the staff room, they had their break at the back of the kitchen next to the sink. The Chefs would go to the staff room between 4 and 5 pm.

He submitted that kitchen porters were treated differently to new people, Irish staff and other nationalities .He recalled being in the pub with MR C who told him to be careful regarding “ racism “

He denied having a relationship with the complainant. He explained that preparation work was underway in peeling bags of carrots and parsnips and the complainant was behind. He merely assisted her with the bags.

During cross examination

Mr C2 confirmed that breaks were given to Chefs but the kitchen porters did not get breaks .They were either in the backyard or the staff room on Sundays

Respondent’s Submission and Presentation:

During the preparation for the case and during the first day of hearing, the respondent was represented by a firm of Solicitors. From the second day of the case, the respondent was represented by the owner of the Hotel who introduced witnesses.

The respondent disputed all claims and contested the revision of the claim for constructive dismissal to one of Unfair Dismissal and augmentation of the claim under Terms of Employment Act.

The Hotel had been rescued from receivership in 2012. It had since been upgraded and had been relaunched as a Family Hotel .It had received an 80 -90% endorsement for staff friendliness on TripAdvisor .The owner adopted an open communication style where staff knew that they could “always come to him “.The Hotel had been subject to a NERA inspection in 2015 and Grievance, Disciplinary and Bullying procedures were circulated to staff. The complainant worked 127 days in 2014, an average of 7.9 hours per day and 30.46 hrs per week.

He understood the complainant was settled in her job as he met her regularly as he was “hands on “at breakfasts for 18 months .He made sure that staff took their breaks and hotly contested that the owners ever appeared intoxicated in front of the staff .The complainant never sought him out to raise an issue .He disputed that she had been exposed to racism of bullying at the hotel. He recalled that the complainant had been involved in a disciplinary matter in June 2014 as Mr C had filled him in.

He was aware that the complainant had sought holidays in August which had been refused .He was aware that the complainant had come to the Hotel on August 28^th and confirmed her intention to return to work post sick leave.

At approximately 4.20pm on August 29, Mr C approached the owner to inform him that the complainant was not coming back to work; there was no mention of illness. When the Hotel received the complainants medical certificate on September 1, he was confused as the cert was dated 29^th August. He phoned the Dr and confirmed that the attendance had been on September 1.He phoned the complainant the next day , that was her chance to make her case but she did not .The Hotel had no reason to get rid of her as an employee .

He was aware of the “romantic “issue in the kitchen.

During cross examination

The owner confirmed that a clocking in system was present in the hotel .Sign out was manually recorded.

The hourly Sunday rate was increased by 10cent per hour in line with comparator businesses. The hotel did not have contracts, policies, and sign on records, holiday logs or holiday forms to submit. The sole letter for submission was a letter signed by the complainant and Mr AM (assistant manager) surrounding the complainants planned return to work. These were supplemented during the followings days of hearing by provision of signed terms of employment on behalf of the Hotel and employment policies .

In relation to the alleged dismissal, the owner stated that MR C had called the complainant back after her first call on Saturday, but there was no answer. The hotel understood that she was not coming back to work .The last dismissal at the hotel was in June 2015.

There were no notes on the conversations detailed during August 29-September 2 .The usual practice was to write in the Diary.

He submitted that the complainant had been paid for public holidays and the compliance document was with the WRC.

In response to the questions posed by the Adjudicator, the owner confirmed that the Hotel did not have a resignation/termination procedure. “We hope to get a letter” when people leave .There was no specific cultural awareness training as the various nationalities were long time established in Ireland.

The complainant did not advance an appeal to the letter of September 1. The phone call on 2^nd September was the last conversation . The owner submitted that the complainant was intent on leaving her employment.

Evidence of Ms GM

Ms GM had submitted a signed statement dated 15 December 2015.

Ms GM recalled the episode submitted by the complainant on the “finger clicking episode “. She recalled a busy function in or around July 3^rd 2015, she was directing a function and she approached the kitchen area with serving spoons in hand. The complainant and Mr KP1 were in attendance. She asked twice for a service tray, as she was ignored the first time. She recalled that Mr KP1 was eating vol au vents. She secured the service platters herself .She denied any allegation of shouting , explaining that the kitchen is situated right next to the Banqueting room and there is already quite an amount of background noise in the form of dishwasher, blender .As the “ Top table” is near the door she was mindful of speeches and having to adopt a “ quiet voice “ .

She often shared breaks with the complainant. She knew that pickled cucumber and salad was a favourite dish of hers.

She submitted that the complainant may have overheard a conversation between Mr C and Ms GM in relation to having a high number of Hungarian workers at the hotel, but this was not meant in a derogatory way.

She did, however remember an incident where the complainant had fainted and she dropped everything to assist her. Ms GM confirmed that MR C was in charge of the complainant “Everything went through Mr C “. Mr C did the roster and Ms GM typed it .She knew that the complainant was also working in a neighbouring restaurant.

She had no knowledge of referring to “ Hungarian gangs “ and told the hearing that the Hotel continued to hire workers of Hungarian background over the past months .They had hired a breakfast chef and accommodation assistant .There was a diverse culture in the kitchen.

She submitted that the complainant was the sole female in wash area, she did not do heavy lifting and asked for help in that regard .She recalled that the complainant had requested the second and third week of August as annual leave .Mr C held the forms .She recalled that the complainant had gone on sick leave on 6 August 2014. This corresponded with what happened subsequently over the same period in 2015.

Ms GM submitted that Mr C had given the complainant a contract but it had neither been signed nor returned. It was in both Hungarian and English .The complainant had not raised any issues on complaints, discrimination, and victimisation or in relation to breaks / meals while she was working at   the hotel .She often passed the complainant while she was on smoking breaks or on her mobile phone .There was provision to do school runs or run errands during breaks. There were 45 employees at the hotel and Mr Gm had never witnessed racism.

During cross examination, Ms GM confirmed that MR C was generally there late at night and she did not personally organise or record the complainant’s breaks.

She had sent the contracts for translation prior to passing them to Mr C .The contract was not returned. In 2015, the hotel commissioned the services of a HR Specialist who updated employment policies to comply with legal requirements. These policies were in place before April 2015.The final version was signed off in April 2015 and dated 16 May, 2015. She denied there was a gap in policies .There was also a full day of Equality Training.

She disputed that the reference to Workplace Relations Commission was in error and should have read Labour Relations Commission pre October 1, 2015.

She recalled taking a customer down town on the afternoon of August 29^th when Mr C phoned her, telling her that the complainant had resigned over the phone. He had told her that he had tried to call her back but she would not answer. As far as he was concerned the complainant was not coming back.

She recalled the earlier holiday request from Mid- July that the Hotel was not in a position to grant .Everyone had to do a bit more work to cover her absence for 2 weeks. Ms GM submitted a form date 27 August which indicated that she was expected back to work on Saturday, August 29^th.

Three staff had walked out of the Hotel, including the complainant. Ms GM did not become involved in the administration of the resignation. She did inform the owner later on 29^th.

In response to further questions from the owner, Ms GM confirmed the pre-existence of employment policies prior to the review in 2015. As far as she was aware, the solicitor for the respondent had not shown her statement to the owner in advance of submission. The hotel did not receive a letter of resignation, neither was the complainant bound to serve her minimum notice. Mr C had managed the event .There was no formal record of her departure.

She recalled an event in Mid July 2015, where she had witnessed the complainant in an embrace with a chef and she had brought it to Mr C s attention as inappropriate behaviour .The Chef then walked out on August 20^th and a fellow kitchen porter did not return from annual leave. She reiterated that she used spoons in the episode referred to by the complainant as “finger clicking “

Evidence of Mr SC (Sous Chef)

Mr SC worked as second in command to Mr C from 2011 .He confirmed that a positive culture of breaks existed at the Hotel. These breaks were not recorded .He confirmed that kitchen staff were treated better in regard to meal choice as they frequently had a pick of starters or sweets left over from functions .He confirmed that English was the language of choice in the kitchen. He was the sole Irish person who worked there .He had not witnessed the “finger clicking episode “nor had he witnessed racism or discrimination in the Hotel.

He confirmed that the complainant availed of breaks every hour. These breaks were rest breaks and smoking breaks .It was open to her to take food from the buffet .He was aware that the complainant visited the laundry a couple of times a day .Smoking breaks were nor used in calculation for regular breaks . He confirmed that he monitored breaks and drew up the work rosters occasionally.

On Saturday , August 29^th ,he was working in the kitchen with MR C , He was standing beside Mr C when he told him that the complainant was not coming back to work .He was disappointed to hear this news as it meant that staff would be under pressure to cover . He submitted that perhaps she could have called in advance. He was clear that Mr C had stated that “She said she is not coming back “

During cross examination, Mr SC confirmed that he had prepared his own statement for the Hotel Solicitor

He was aware that Mr C had made a couple of calls to the complainant on the afternoon of August 29^th .He was clear that MR C told him that the complainant was not returning to work and that it was not an extension of sick leave .The Hotel did not have an immediate replacement available for the complainant .

He confirmed that he had been involved in the management of breaks and he drew up the roster occasionally.

Evidence of MR KP2 (Kitchen Porter)

Mr KP 2 worked as the third kitchen porter. He was Hungarian and had worked at the Hotel for 2.5 years .He described the complainant as a good colleague .He denied that she was treated differently .He had a good relationship with MR C. He knew about cigarette breaks and   visited the staff room for his breaks.

He confirmed that he was permitted to ask for any food from the chefs and sometimes the porters ate at the sink rather than allow the food to be thrown out .Nobody had ever told him that he was not permitted a break .He confirmed that there was a friendly atmosphere at the hotel and he had signed his contract in Hungarian.

During cross examination,

He denied feeling under any pressure to attend the hearing or to submit a statement. He understood the contents of his statement.

He disputed that meal breaks were not taken if service was busy.” Never too busy to go to the staff room “. He was not certain when he signed his contract .Breaks were recorded but not written down.

He confirmed that he had sought an adjustment in his hours of work when he was totally exhausted .He submitted that he understood that the complainant had asked to get another kitchen porter.

The respondent submitted a closing statement taking issue with the complainant’s claims over the three days of hearing. In particular, my attention was drawn to continued denial of any maltreatment of the complainant in terms of extended finish times and reduced rest periods. The respondent submitted that the kitchen porters knew that they ought to go home if the statutory rest period of 11 looked likely to be compromised as there were always two porters on duty and they could reasonably provide relief for each other.

1 The complainant referenced that 31 August 2015 was a bank holiday. This prevented her from accessing medical cover earlier. This period was not a bank holiday.

2 The respondent denied constructive or unfair dismissal.

3 The complainant and both of her witnesses Mr C 2 and Mr KP2 walked out of the Hotel. One during service and one after two weeks holidays.

4 An excel sheet of comparative work patterns for Mr SC and Ms LH were submitted.

5 The complainant’s efforts to find work did not extend outside the Hungarian community .She applied for just 1 job in her area of expertise but not until 9 months after she finished. The respondent was unhappy at the lack of effort on mitigation of loss.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 27 of the Organisation of Working Time Act, 1997, requires that I make a decision in relation to the complaint in accordance with the provisions of the Act.

Section 11 of the Minimum Notice and Terms of Employment Act, 1973, requires that I make a decision in accordance with the relevant provisions of the Act.

The claim for Discriminatory Dismissal was withdrawn on the first day of hearing.

Pre-amble:

This case ran over three days. The respondent departed from his initial representation by a Solicitor on day 1, managed his case over the final two days and during the intervening period by himself. On the first day, the complainant gave evidence .She was joined on day two by two further witnesses.

From the outset, it was apparent to me; through the collective references by the parties that MR C was a key player in the events that unfolded at the Hotel during the complainant’s employment. He ran the kitchen. The respondent produced a statement from MR C which was objected to by Counsel for the complainant. They wished to be in a position to cross examine him and the statement was categorised as deficient for this purpose .I accepted this position. Counsel for the complainant also objected to the inclusion of statements from the respondent witnesses . I accepted the statements from those witnesses who attended the hearing and participated in cross examination.

On the second day of hearing ,the respondent sought leave to secure Mr C as a witness; however, there were a number of pre-conditions attached to this. As the Chef had relocated to Hungary and was apparently working at a 5 star facility , he would be unable to travel over the course of the Summer .The respondent requested that the hearing by adjourned from June to October as there were three named Mondays during which Mr C could travel and address the hearing . These were to be 3, 10, and 17 of October .The complainant was unhappy at the protracted delay but agreed to the adjournment. I worked with the WRC to secure the date of October 10 and in advance of the hearing I sought some detail from the respondent on the number of witnesses he intended to produce on the day .I did not receive a response.

Instead on the day of the hearing, the respondent made an opening submission that MR C would not be in attendance and read from an email which attributed his non-attendance to his Fiancée wishing him not to travel. Counsel for the complainant was highly critical of this development and the increased costs levied on her client by the needless extension of time. I was also disappointed by this turn of events but proceeded to bring the hearing to a conclusion.

Issues for Decision:

1 Claim for Unfair Dismissal:

The complainant lodged her complaint with the WRC on 20 November 2015, some 11 weeks post dismissal. I have inserted the complaint, extracting any reference to identities.

I commenced work in the Hotel on or about 26 May 2014 and I was employed as a Kitchen Porter. My net weekly take home wages varied greatly depending on the overtime worked by me. On Saturday29 August 2015 I rang the Head Chef and I informed him that due to illness I could not attend work on that date. Prior to 29 August 2015 I had been out of work with illness since on or about 07 August 2015 and I had furnished sick certs from my GP which confirmed the extent of my illness. In any event I rang the Head Chef, on 29 August 2015 and following my phone call to him I received a letter from the Hotel dated 01 September 2015 and signed by the Proprietor thanking me for my service and confirming that the hotel would forward me my P45 in due course. The letter

Stated that the Head Chef received a call from me on 29 August 2015 stating that I would not be returning to work. At no stage had I rang the hotel to resign. Indeed, prior to receipt by me of the letter from the hotel dated01 Sept. 2015 I had, on the 01 Sept. 2015 obtained a medical certificate from my own GP and I had given this cert to the Hotel on the morning of 02 September 2015. Following receipt of this medical certificate on 02 Sept. 2015 by the Hotel, the proprietor telephoned me in relation to the certificate and I advised him that under no circumstances had I resigned and the Head Chef had made a mistake. I told the proprietor I would return to work but he made it clear to me I could not return.

The complainant lodged a claim for Constructive Dismissal cited the leaving date of 29 August, 2015 and the preferred option of compensation as redress.

On the first day of the hearing, the claim was advanced as an Unfair Dismissals case as the complainant denied resignation. Having carefully considered the text of the actual complaint together with the evidence adduced .In particular, the letter from the Respondent solicitors dated December 18^th, 2015, I am satisfied that this is a claim for Unfair Dismissal, the respondent is on notice of the claim and not disadvantaged by the clarification of intent .County Louth VEC V Equality Tribunal [2009] IEHC 370, applied.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that a Dismissal will be judged to be Unfair, unless having regard for all the circumstances, there were substantial grounds justifying the dismissal.

This is followed by

Section 6(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

In the instant case, the evidence can be summarised as the complainant submitting that the period of August 29^th was a sick day and not a precursor to a resignation. She had not received her roster for the week ahead .She had signed a translated form the previous Thursday which stated

“I would like to work in the Hotel as a kitchen porter again .My health doesn’t stop me to do so “

She stated that a bank holiday weekend prevented her from obtaining a medical cert prior to the following Tuesday and she submitted it to a Manager at the Hotel. She then received a confirmation that MR C had informed the hotel that she had finished work on 29 August. She did not appeal the prevention of her return to work.

From the respondent’s evidence, the Hotel accepted Mr Cs version of events that the complainant had resigned. Mr SC heard Mr C state that the complainant had gone .The Hotel did not insist on notice and found that they could not accept a post dated medical certificate when the employment contract had ceased on August 29^th. This was the date inserted on the P45.

The facts of the case are disputed and underwritten by considerable conflict between the parties. I have looked into this conflict .I have paid particular attention to the letter signed by the complainant and co -signed by the Assistant manager on 27^th August. This is an agreed understanding that the complainant intended to come back to work post sick leave on her next rostered day , August 29.This was accompanied by a medical cert signalling medical fitness to return to work on August 24. .

I have consulted the staff handbook and the submitted contract of employment and I cannot obtain a clear direction from these documents.

There is a reference to an expressed term of employment of the need to submit a minimum of 2 weeks’ notice if/when leaving. This was followed by the company’s intention to withhold a weeks pay in the event of failure to give notice. This was not actioned in this case.

I note that the complainant’s certificate dated 29 August -5 September cited gastroenteritis. I also note a reference in the submitted contract that “any illness that may be infectious must be brought to the Managers attention immediately.”

It seems to me that the complainant may have been following that plan. The complainant submitted her certificate on fourth day of illness which was a variance on the third day stated in the contract .It did however state that she would be on sick leave until September 5^th.

I found an inconsistency of approach in how the Hotel managed a back to work from sick leave through a translated form vis a vis how it managed the purported resignation.

Given that the complainant had worked at the Hotel for almost a year and a half and had the protection of employment legislation, the respondent confirmed that they had not recorded the purported resignation in a translated document on par with the return to work document. I find this inconsistency to be stark and deficient in good practice .I find it difficult to believe that a Hotel of 45 employees would adopt such a random approach. I would have expected a uniform approach

I have considered the respondents evidence and repeated submissions that the business is being unfairly targeted by the complainant and a pool of other disgruntled Hungarian workers. I appreciate that the Hotel was rescued from receivership and was perceived as a reputable employer However, this is not a case concerning Public Policy and I have been assigned this case to adjudicate on whether

1 A Dismissal occurred?

2 If a Dismissal occurred, were there substantial grounds for the dismissal.

In accordance with the Unfair Dismissals Act 1977.

I have considered the facts of the case and the conflicts in evidence. I find that based on the balance of probabilities , the complainant did have a discussion with MR C some time after 4pm on Saturday , August 29 and I find that the contents of the conversation must have been misinterpreted by Mr C . Of course, it would have been helpful had Mr C presented to the hearing to assist in the resolution of the conflict. However, I find that even if Mr C had taken information on resignation from the complainant, it ought to have triggered an alternative response than a mere notification to Mr SC and Ms GM. Saturday evening in High Season could not equate with a proper back drop to discuss an intended resignation. An invitation to discuss the resignation should have followed, it did not.

I have further difficulty with the issuing of the “good bye “letter on September 1 by the Hotel. The last weekend ofAugust was not a bank holiday and there was a delay by the complainant in producing a cert within the required three day period, however, she was medically certified as ill and I accept the delay was not fatal to her case.

I have found guidance in Dismissal Law in Ireland (1st edition, Butterworths, Dublin, 1999) by Dr Mary Redmond,

“When unambiguous words of resignation are used by an employee to an employer, and so are understood by the employer, generally it is safe to conclude that the employee has resigned .However, context is everything .A resignation should not be taken at face value, where in the circumstances, there were heated exchanges or where the employee was unwell at the time. The intellectual make up of the employee may also be relevant.”

In this case , the complainant was a Hungarian national with poor English ,she had a certificate confirming illness and I accept that she intended on return to work post sick leave .I find it unreasonable that she was denied that opportunity to return .

Counsel for the complainant pointed me to a case of Kwik Fit (GB) v Lineham [1992] IRLR 156, cited in Millett V Shinkwin [2004] ELR 319

“Where special circumstances arise, it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances “the intention to resign was not the correct interpretation when the facts are judged objectively “

I find that these special circumstances have arisen in this case. The backdrop to the conversation which took place in Hungarian on Saturday 29^th was a busy service area and compounded by a shortfall in staffing in the kitchen porter area. The Hotel managers and indeed Mr SC formed the view that the complainant had resigned and this view was not adjusted following the submission of the sick certificate on the following Tuesday.

I find that the respondent did not take the time to ascertain the express position of the complainant at that juncture. Many of the staff had an opinion, such as Mr SC accepted the details of the resignation as he knew the complainant was working elsewhere. Ms GM and the owner accepted what Mr C imparted to them but nobody completed the administration for a resignation and nobody was swayed by the augmentation of the medical certificate .Yet, a P45 dated 29 August was raised by the respondent. I find this to be precipitous action.

While, I find it remarkable that the complainant did not mount a real time appeal to her exclusion from her planned return to work .I must find that the respondent did not follow their own procedures in managing a resignation and this led to a blurring into exactly what occurred over those critical days.

Based on the evidence before me, I accept that the complainant was prevented from returning to work following her submission of her medical cert on September 1 and I find that the Hotel placed full confidence in how Mr C interpreted the phone call without a corresponding regard for the complainants version .I find that this action amounted to the cessation of the complainant’s contract by letter dated September 1, 2015. This was a unilateral action, for which the respondent cannot avail of the defences permitted in Section 6(4) of the Act. I find this action to be unreasonable and in the absence of substantial grounds justifying her dismissal, I am satisfied that the claim under the Unfair Dismissals Act must succeed.

In considering an award for compensation under section 7, I am mindful of the very limited attempts recorded by the complainant in securing work. Given that she was known in the hospitality industry in the area, I note that there was a lone application for this end of the market. I cannot penalise the respondent for this omission on behalf of the complainant. I am also mindful that the complainant did not dispute working elsewhere and this was not recorded on the table of loss. Therefore, I award the sum of € 9,500 in compensation.

2 Terms of Employment Claim

The complainant submitted that a complaint was lodged in relation to the complainant not being given a contract of employment .On 7 April 2016, prior to the first day of hearing; Solicitor for the complainant sought an update from the WRC on whether the claim would be incorporated in the hearing? The complainant submitted the claim in the context of the opening submission stating that the respondent had not provided a contract in accordance with the Act. The respondent contended that the claim had not been submitted on the original compliant form .The complainant sought application for an understanding from the Adjudicator that the claim was legitimate and had been flagged on the complaint form.

I have considered both parties responses. I accept that the claim was intentional on behalf of the complainant. I note that the claim was lodged in the infancy of the new Adjudication system and I am mindful of the High Court direction in the case of Louth VEC:

“…..I accept the submission on behalf of the respondent that the form EE1 was only intended to set out in broad outline, the nature of the complaint .If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as EE1 so long as the general nature of the claim remains the same “

I agreed that the claim was properly before me and I allowed the respondent a reasonable opportunity to address the claim.

It was the complainants evidence that she was not provided with a contract of employment .The respondent was clear that the complainant had been given a contract by Mr C and had not returned it. I am conscious of the overlap in time with the reports of the NERA inspection.

The respondent submitted a contract template during the hearing. This was followed by file copies of the actual statement of main terms of employment signed on behalf of the hotel on 24 July 2015 and translated into Hungarian...

Written statement of terms of employment.

Section 3 of the Terms of Employment (Information Act) 1994 provides:

3.—(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment

The signed copy of the statement of terms was dated 14 months after the complainant commenced employment. This constitutes a breach of the Act. I find the complaint to be well founded.

I award compensation of two weeks’ pay €930.40.

3 Employment Equality Claim

The complainant submitted her complaint on race grounds contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment in terms of sections 8 of the Acts, she also made a complaint of victimisation contrary to section 74(2) of the Acts . The respondent disputed the claim.

I have listened carefully to the evidence submitted by the parties and I have considered all documentation submitted.

Claim for Discrimination on Race grounds

I have commenced with an analysis of the contract given to the complainant. This states a minimum working week of 8 hours, part time. Pay slips submitted by the respondent confirm a much higher pattern of working and this was accepted by the respondent. I find that the complainant described being very unhappy at work in her role of kitchen porter, yet the respondent remembered her as a good worker. The complainant did not make application to reduce her hours, but seems to have raised her concerns with Mr C and Ms GM without resolution.

Again, the loss of Mr C to the hearing is regrettable in this regard. I have relied on the evidence of the parties present at the time. The core disquiet of the complainant centred on not having allocated protected break times and somewhere to sit down to have breaks and she believed that she was unfairly treated by this exclusion .She expressed a poor working relationship with Ms GM .

The owner recalled having his lunch with her, Mr SC and Ms GM knew her preferred meal choice. This was not disputed .However; I found the evidence given by Mr KP 2 for the respondent to be most exact and instructive in this regard. He submitted that he did attend the staff room for breaks and there was no difference in the treatment he received because he was Hungarian. He told the hearing that “It was never too busy to go to the staff room “He confirmed that the long hours were hard during busy times and that he had asked for fewer hours due to exhaustion. I am mindful that at the time of the events complained of, the three kitchen porters were of Hungarian origin .I cannot accept the evidence of Mr KP 1 as cogent in regard to breaks. A lot appeared to rest on how well an employee could advocate for self .

I have considered the “ finger clicking “ claim and in particular the response of Ms GM in terms of the clarification on spoons rather than fingers and I accept this clarification in terms of the context of a busy function and the outcome recorded where she secured the tray herself . I find that this issue would have benefitted from a team meeting .

The complainant stated in evidence that she was rostered for every Sunday afternoon. From my analysis this was not a year round practice as the off season rosters did not capture this practice. It is clear from the evidence of the complainant and her witnesses that there was a perceived requirement for them to work for extended periods and that the complainant was singled out because of her race in this regard . I accept the documentary evidence from the respondent that Mr SC and Ms LH worked excessive periods also over comparable periods .While , excessive hours are never optimal , I note that the Hotel did not have a contingency plan to address these and mitigate the effect . It is clear that they failed to establish that the complainant was unhappy and under pressure at work. I also accept that smoking breaks must be in some way being recognisable as rest breaks.

I have considered the submissions on “ Hungarian gangs “ and I find that that was a conversation overheard between Mr C and Ms GM and followed by the employment of another Hungarian Chef .

I find that the issues rose in terms of coercion, extended hours of working, inadequate break times may have benefitted from being raised as an individual or collective issue in the first instance. I can appreciate that the complainant was unhappy and stressed by her time at the hotel. However, I am being asked to address whether Section 6 and Section 8 of the Act have been breached?

Based on the evidence before me, I find that, the complainant has provided insufficient evidence that she was treated differently because of her nationality in relation to the hours of work or any of her claims in relation to her conditions of employment. Her claim of being” discriminated against constantly” needed careful scrutiny.

Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent .In Darguisz v lough Corrib Engineering DEC- E2009-38, the complainant was required to establish a” difference in treatment” not simply treatment of a manner less than ideal to satisfy a claim for discrimination .

The complainant provided insufficient evidence that she was treated any differently than anyone else in relation to her conditions of work. I therefore conclude that while the complainant was not ideally treated ,-2015 she is unable to establish a prime facie case of discrimination in relation to her conditions of employment.

Victimisation :

The respondent disputed the claim .The complainant submitted that she had been victimised in the manner in which she was addressed by Ms. GM and by the “ snapping of fingers “ episode .She told the hearing that she tried to address this directly with Mr. C and Ms. GM , without success .

The Labour Court referred to the Law surrounding Victimisation in the seminal case of Department of Defence v Tom Barrett, EDA 1017.

The Court first considered if the Complainant’s claim of victimisation is sustainable having regard to the provisions of the Acts.

Section 74(2) of the Acts defines victimisation as follows: -

• “(2) For the purposes of this Part      victimisation occurs where dismissal or other adverse treatment of an      employee by his or her employer occurs as a reaction to—     
  • (a) a complaint of       discrimination made by the employee to the employer,

                                         (b) Any proceedings by a complainant,

(c) An employee having represented or otherwise supported a complainant,

                         (d) the work of an employee having been compared with that of another employee for                                                    any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000or any such repealed enactment,

                                 (f) an employee having opposed by lawful means an act which is unlawful under                                  this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

In order to meet the test for the burden of proof required in Victimisation under Section 74(2) of the Acts, the complainant would have to demonstrate that she engaged in a protected act as described above and received adverse treatment directly as a consequence of this. I find that the complainant cannot establish the test as set down in Barrett. She made her complaint of discrimination on November 20, 2015 and this post dated the treatment complained of. I find that her complaint under Victimisation cannot succeed.

4 Organisation of Working Time Act 1997 Claims

The complainant alleged that she had been expected to work in excess of 14 hours without breaks. She submitted that her health had suffered accordingly. The complaints referred to the years of 2014 -2015 and were rejected by the respondent, apart from a confirmation of 5 incidents of less than the statutory rest period in 2014 and 3 in 2015. There was also one day where the complainant worked 1 shift of 14 hours. This was preceded by a day off and followed by a 12.5 hour rest period. The respondent exchanged certain records with the complainant but did not submit the WRC Inspectorate report of 2016 .Instead; the respondent submitted that the business had a clean bill of health from the Inspectorate.

Dated:   15 November 2016