ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001735 & ADJ 00002071

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00002347-001	02/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00002347-002	02/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00002347-003	02/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012	CA-00002814-001	23/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00002814-002	23/02/2016

Date of Adjudication Hearing: 28/06/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, and/or Section 7 of the Terms of Employment (Information) Act, 1994, Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 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:

While working as a manager I committed myself to the business given more than the extra mile. I have been conscientious, punctual, and hard-working to the extent of sacrificing my personal time for the sake of business. I have been working long shifts, most times starting at 10 am and finishing late at 4 am with only a few smoke breaks in between. All this time I have done a great job, to the best of my abilities with no complaints. All this time I have not received guidance or advice from my boss, Mr. Respondent. .Along the time I have received several malicious criticism/ jokes with reference to my ethnicity or my work attire like '' where do you buy your clothes from, Roma Gypsie shop?'' or ''you Romanians are all the same, robbing gypsies'' ''Roma Gypsie'' ''you should go and buy some clothes, you're not working in a coffee shop. On December, 17th 2015 during lunch service Respondent had a go with me being totally out of order. He spoke to me in a very rude manner being out of control. Between yelling and shouting I was given unfair criticism about myself and my professional capabilities, being blamed for mistakes that are not mine. I was left in shock and distressed, due to that horrible event I had many headaches, panic attacks, nose bleeding, sleepless nights, anxiety, ulcers. I felt humiliated, confuse, powerless and disoriented, undermining my right to dignity a work. That day I was sent home. Next day I came to work feeling like I was about to throw up and very troubled where during a short conversation initiated by myself, Respondent said that a few months ago I was working in a café and didn't know much and called me arrogant using an aggressive tone. Then he went up the stairs saying 'do you want me to send you an email?'. Again I was left totally shocked and distress not knowing what to expect regarding his last words which I thought was a threat to my job. That happened during dinner service while customers dining in the restaurant. Since 17th of December, my roster was changed constantly; I was given days off work without notice. It created a very stressful, hard to bare, intimidating, hostile and offensive environment for me working there.

Tuesday, 12th of January at 11:30 I was called up in the office by my employer Mr. Respondent where I was informed that the business is at a different level now so he is going to take over the managers' position and he is offering me the waitress position within the company and I have 24 hours to think about it. 24 hours to decide: demotion or being sacked! After that I was told to go home (after 1.5 hours of work) saying that I am not needed. Prior to that I did not received any notice, verbal nor writing warning as to the way I am doing my job. Due to the high stress factors and deplorable treatment I have received, I got really sick. Next day, on Wednesday 13th I went to doctor and received a medical cert. That day I was under pressure by Respondent as he had called me and sent message. Thursday I have sent my medical cert onto Respondent but instead of being understanding I have received an email saying that I am being taken off the roster and wishing me well in my future endeavours.

Its been close to an year since I start working and I have not received a contract of employment.

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Respondent’s Submission and Presentation:

The Respondent did not supply a written submission but gave extensive oral evidence, supported by some documents.

While admitting to a small technical breach of the Terms of Information Act, 1994 the Respondent robustly rebutted all elements of the Industrial Relations Act claims.

The Respondent denied any racial abuse or derogatory comments and maintained that he Complainant had in effect resigned from her position with the Company.

Decision:

Section 41(4) of the Workplace Relations Act 2015, and/or Section 7 of the Terms of Employment (Information) Act, 1994, Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 and or section 13 of the Industrial Relations Act, 1946 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.

Issues for Decision:

Accepting the technical Breach of the Terms of Employment (Information) Act, 1994 as a given were there any grounds advanced by the Complainant to substantiate the claims under the Industrial Relations Act, 1969. If so did the Respondent have compelling rebuttal arguments?

Legislation involved and requirements of legislation:

Legislation is as stated above.

Decision:

Industrial Relations Act, 1969 claims

CA-00002347-001 & CA-00002814-002

Having reviewed at the evidence presented, both oral and written, but especially the oral evidence given at the hearing it was immediately clear that there was a major conflict in recollections and interpretations of the key events cited – the meeting in the office at the head of the stairs on the 17^th of December 2015 and the meeting in the office on the 12^th January 2016. Minutes were presented of the meeting of the 12^th January 2016 and seem to form a reasonable basis of fact.

However, what was overhanging all these events and colouring all recollections & interpretations of events from the parties was the clear evidence at the oral hearing of a major disagreement between the Respondent Owner/Manager and a former Senior Manager /Director. This former Director attended the hearing as a support /witness for the Complainant.

It appears to me that the background to the issues raised by the Complainant was this disagreement, in relation to how the business was being run, among the Directors. The Complainant was closely associated with the ex Director/Senior Manager. Her terms and conditions, especially the manner she was being paid, formed a major issue of conflict between the Managers.

In this emotionally charged atmosphere, I took the view that the probity of evidence being given was highly suspect from both parties. On the pure balance of probability the version of events being advanced by the Respondent seemed to have more credibility.

This applied in particular to the crucial meeting and subsequent events surrounding the meeting of the 12^th January 2016 where the offer of an, albeit lower rank position, was made to the Complainant. The Complainant’s former Managerial responsibilities were to be undertaken by the Respondent/Owner.

The basic lack of direct evidence and complete conflict in what evidence was available in relation to the meeting or conversations of the 17^th December 2015 made any decision in relation to this event difficult. However, on the balance of probabilities I accepted the Respondent’s version of events. The absolute denial of any ongoing racial or derogatory remarks against the nationality of the Complainant was accepted. The business had a multi racial staff and racially abusive language would not be appropriate.

In summary, I took the view that overall the complaints by the Complainant failed to satisfy the necessary standards of prima facie evidence required to substantiate her case.

Accordingly I dismissed the Industrial Relations Act elements of the claim.

CA-00002347-002 and CA -00002347-003

Terms of Employment (information) Act, 1994 claims.

The First element of this claim, namely the non receipt of a written contract of employment by the Complainant was accepted by the Respondent.

I accordingly award a lump sum of €200 Euro to the Complainant as compensation for this breach. As compensation for a breach of rights it is, subject to Revenue approval, non taxable.

The Second element namely the lack of notification of a change in terms and conditions I did not accept as the minutes and emails associated with the meeting of the 12^th January were clear evidence of written communication.

The non receipt of a P45 was clarified at the hearing in the context of the assurance given to the Adjudicator that all outstanding holiday payments would be discharged immediately.

CA-00002814-001

Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

It was accepted by all parties that this reference was an error in the completion of the Complaint form and did not form part of the proceedings.

Dated: 9^th September 2016