ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005581
Parties:
| Complainant | Respondent |
Anonymised Parties | A Waitress | Pub / Restaurant |
Representatives/ Witnesses | Peter T. Reilly, Solicitor
Gerard Lawless Brian Farrell Ann-Marie Kelly | David Gaffney Gaffney Solicitors |
|
| Elaine Carew Kirwan |
|
| James Coady Sharon Rossiter |
|
|
|
Complaints:
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-00007778-001 | 24/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007778-002 | 24/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007778-003 | 24/10/2016 |
Date of Adjudication Hearing: 29/03/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Location of Hearing: The Anner Hotel, Thurles, Co. Tipperary
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 27 of the Organisation of Working Time Act 1997, 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.
Background:
The complainant contends that she was constructively dismissed from her job. She also contends that she did not receive the provisions of the Organisation of Working Time Act 1997 as it relates to annual leave and public holidays. |
Summary of Complainant’s Case:
The complainant stated that she worked as a Waitress in the respondent’s pub / restaurant from 1st September 2001 until 24th July 2016. On that date (24th July 2016), she submits that she was subjected to a tirade of abuse from the respondent owner of the business. She contends that there was a history of physical assault on her perpetrated by the owner of the business, whom she stated once punched her in the shoulder when she was working at the till, kicked her into the ankle, and flung ice cubes at her. The complainant contends that the owner treated her in a demeaning and insulting manner, undermining her position in front of customers. She further states that in May 2016, the owner told her she would change her day off if she wanted to. The situation which gave rise to the claim of constructive dismissal was an incident when the ice machine was not working and as the complainant’s colleague was going to the nearest town to get ice, the complainant felt she could not work the floor alone on what was a busy day. The complainant said that after the owner shouted at her, she (the complainant) asked was she to come into work the next day and that the owner did not reply. The complainant contends that she had no option but not to return to her place of work and that she had to attend a doctor for stress. |
Summary of Respondent’s Case:
The respondent refutes the allegations made by the complainant. The issue of whether the complainant was dismissed (when told to go home), or deemed herself to have been constructively dismissed by virtue of the behaviour of the employer is raised as an unsatisfactory element of the complainant’s complaint. The Adjudicator is asked to rule the complaint out of order as the complainant gave two contradictory complaints to be adjudicated upon. In relation to the substantive issues, a submission was made summarised as follows: The complainant was in the employment of the respondent from almost the beginning of their ownership of the business and was a trusted staff member who had full responsibility for handling takings and security keys. She had a contract of employment issued to her in September 2002 and was given the company disciplinary and grievance procedures. It is submitted that on Friday 22nd July the owner had an informal counselling discussion with the complainant in relation to her behaviour in work. Expected standards and behaviour were discussed with her. Two days later on 24th July 2016, the owner was speaking with customers in the bar when it came to her attention that the ice machine was not working to capacity. The owner then asked the complainant’s colleague to collect ice before they got busy. When the colleague informed the complainant that she needed to collect ice, the complainant replied that she would not serve the floor customers if she left. The owner told the complainant that this behaviour was unacceptable and could not continue as it was beginning to disrupt the workplace. The complainant became very agitated and responded badly to being given direction. The owner asked her to cool down or go home. She refused to do her job so was told to go home. When asked about the next day, the owner specifically remembers stating that they would discuss this the next day. The complainant then left and went to the decking area and stayed there for around 40 minutes. She then left the premises without informing the owner. On the following day, on checking with the chef, the owner discovered that the complainant had not come into work and the owner had to come in and open up. She texted the complainant to see why she did not turn up for work and she wrote to the complainant seeking to have the grievance procedures invoked. No reply was forthcoming from the complainant. It is contended that the complainant’s claim cannot succeed as she has contradicted herself on the circumstances – on the one hand stating she was effectively fired by being told to go home, and on the other hand, claiming constructive dismissal. It is further contended that the alleged incidents were supposed to have occurred in 2008, some eight years before the end of the complainant’s employment, and it is not credible that if such incidents occurred they would not be the subject of complaints. It is further submitted that although there was an altercation/verbal disagreement between the parties on the date in question, the complainant was not within her rights to leave her employment on such grounds. Finally, the respondent tried to invoke the grievance procedures with the complainant to no avail and the fact that the complainant did not address her issues internally should prove fatal to her claim. In relation to the claim for annual leave and public holidays, records were submitted to support the respondent’s case that proper payment of annual leave and public holidays were made. |
Findings and Conclusions:
CA-00007778-001 - Unfair Dismissals Act 1977
Preliminary Issue
A preliminary issue was raised by the respondent’s representative as regards what the actual complaint was – constructive dismissal or actual dismissal by the employer. I find as follows:
The complainant submitted a complaint for adjudication as follows:
“I had to leave my job due to the conduct of my employer or others at work (Constructive Dismissal)”.
The complainant further stated that the respondent had ordered her to “get out and go home”. The subsequent situation which followed was that the complainant did not return to her workplace, submitted that she could no longer work there and as a result attended her medical doctor.
I find that the complaint properly before me is one of constructive dismissal.
The applicable law
The definition of constructive dismissal is contained in section 1 of the Act as follows:
“the termination by the 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”.
In claims of constructive dismissal, the onus of proof is on the employee. In this case, the respondent employer accepted that there had been an altercation with the complainant on the date in question, but refuted other allegations made about incidents that were alleged to have occurred eight years ago. To succeed in a constructive dismissal claim, a complainant must demonstrate that there has been a fundamental breach of contract on the part of the employer which entitles the employee to treat the contract as being at an end. Except in the most exceptional cases, the employee should at least attempt to avail of any offered means of resolving the issue. In this instant case, I note the correspondence dated 30th July, 1st August and 22nd August 2016. In the letter dated 22nd August 2016, the respondent offered the facility of an external consultant. In the circumstances, I do not uphold the complainant’s complaint.
CA-0000778-002 – Organisation of Working Time Act 1997
The complaint is that the complainant never received her full annual leave entitlement.
Time period cognisable – The applicable law
Section 41 (6) of the Workplace Relations Act 2016 provides:
“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
Section 41 (8) provides:
“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.
The complaint was received on 24th October 2016 and no argument was advanced for an extension of time. The cognisable period therefore is from 25th April 2016.
Section 19 of the Organisation of Working Time Act 1997 provides that an employee shall be entitled to paid annual leave equal to:
“(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), |
(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or |
(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater”. |
I have examined the records submitted by the employer and find that for the time period concerned, the record shows that 10 days holidays were paid to the complainant. I find therefore that the complainant was given the provisions of the Act. I do not uphold her complaint.
CA-00007778-003 – Organisation of Working Time Act 1997
The complaint is that the complainant did not receive her public holiday entitlements.
Section 21 of the Act provides:
“21—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day, |
(b) a paid day off within a month of that day, |
(c) an additional day of annual leave, |
(d) an additional day's pay: |
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom”.
The complaint was received on 24th October 2016 and no argument was advanced for an extension of time. The cognisable period therefore is from 25th April 2016.
The respondent should note that there are 9 public holidays which employers are obliged to observe for the provisions of the Act outlined above. The record shows payment for “holidays” in the weeks dated 12th June and 28th July 2016. From the evidence I deduce that these include public holiday pay. I therefore find that the complaint that the complainant did not receive public holiday pay in the period to be not well founded.
Decision:
I declare the complainant’s complaints to be not well founded.
Dated: 24th April 2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham