ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002336

Complaint for Resolution:

Venue: Ardboyne Hotel, Navan, Co. Meath

Date of Adjudication Hearing: 29/6/16 and 29/09/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

Under Section 8 of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant commenced employment with the Respondent on the 17^th of February, 2014. She alleges that she was constructively dismissed and that her employment terminated on the 28^th of November, 2015. She alleges that she was unfairly dismissed contrary to the Terms of Section 8 of the Unfair Dismissals Act, 1977. She filed a complaint with the Workplace Relations Commission on the 14^th of March, 2016.

Complainant’s Submission:

The following is a summary of the Complainant’s submission;

That she was appointed as a Restaurant Supervisor by the Respondent on the 17^th of February, 2014. This was a permanent position and she was provided with a salary of €24,000 per annum. That her hours of work, as per her contract would be up to 48 hours per week and 5 shifts per week. It was agreed by the Respondent that she would be allowed to learn the full range of responsibilities in managing a restaurant. The Respondent approached her after a short period of time and suggested to her that it might be better for her to work on an hourly basis as other members of staff were and that she would be paid for every hour that she worked and that would give her more flexibility. In and around Easter 2014, she decided to take up the offer to work on an hourly basis and work 4 shifts per week.

On the 19^th of June 2014, she informed that Respondent that she was pregnant. She disclosed the news of her pregnancy at an early stage of 7 weeks, because if she was unfit to work she wanted to be honest with her employer. She had to attend the emergency department at the Coombe Hospital and she advised the Employer that she was unable to work on the advice of her doctor for a period of one week.

The following week, the Respondent spoke to her about hiring a new restaurant supervisor as her circumstances had now changed, meaning her pregnancy. It was also mentioned during this conversation that she could not be working all hours and that she would be obviously taking maternity leave. The Respondent also told her that if she wished to return to work after having her baby, her job would be there but who would want to come back to work with three small kids at home. After that meeting, things started to change in the workplace.

-She was excluded from a marketing programme in a subtle manner. The marketing continued but was no longer her remit.

-There was no verbal Passover between B and herself. As a result it was not possible to discuss issues relating to the transfer. B just sent text messages to her rather than meeting with her.

- Both B and M took holidays the same week without telling her, leaving her the only senior person Front of House.

- B rostered her for 6 consecutive nights which was unheard of. He failed to meet her or to respond to her note.

- On a number of occasions, B undermined her by ringing a junior member of staff to check if everything was well in restaurant when he should have contacted her.

- On the 11^th of August, she had been rostered for a number of close of business shifts, at least 5 consecutive nights in that month.

- On the 12^th of August, she met with M and his sister and she spoke about her frustration about her position. She also raised the issue of poor communication that had developed. She asked for clarity as to what her role was within the business at it had changed in recent weeks. She voiced concerns with regard to her job specification. It was agreed they would meet again to discuss openly any difficulties with a purpose to moving forward.

- She attended a meeting with them again on Friday the 15^th August, 2014. The meeting turned out to be a performance review meeting. M stated that he wasn’t entirely sure that the Restaurant was the place for her and put her on the spot to decide what she wanted to do. He pointed out to her that she was tetchy at being corrected and that she was difficult. That she struggled with work hours and had conflict with the Head Chef during her shifts. She queried why none of these issues were raised at a recent performance review. She pointed out that in recent weeks her role appeared to be changed. It was stated that her role had changed within the business due to her inability out work 5 shifts. This was the first time that this matter had been raised. It was pointed out to her that if she genuinely wanted to fulfil her objectives, then she should come in on her own time and engage with a self-learn approach. M voiced concern that her body language at the meeting was negative and defensive. It was put to her that it was her inability to communicate that had led to this meeting. M ended the meeting by stating to her that he wasn’t entirely sure if the Restaurant was the place for her and to think carefully about what it was she wished to do.

As a result of her treatment at this meeting, she attended her doctor on Monday the 18^th of August 2014 as she was feeling unwell. He certified that she was unable to attend work due to acute reactive stress.

A further meeting took place on Wednesday the 27^th of August 2014 between M and F.P. from HR. The purpose of the meeting was to establish what her role was in the Restaurant. She was informed that if she was unable to work 5 shifts, a 48 hour week that there would be no position for her. She pointed out that she had been upset and distressed as a result of M and B’s treatment of her at the meeting of the 15^th of August.

A further meeting took place on the 25^th of September 2014 attended by F.P. and herself. F.P. told her that she had met with B to query the meeting of the 15^th of August 2014. B had stated that the meeting discussed her performance but that the meeting was not difficult from his point of view. F.P. asked her where she wanted to go from here. She felt she was being pressurised to quit. She was still out on certified sick-leave due to stress at this time but she stated she did want to get back to work. F.P. stated that she could come back to work if she would work 5 shifts and 48 hours per week and this was the only role on offer. She pointed out to F.P. that M had put in place a pay by hour 4 shift per week arrangement for her. F.P. stated that he had no right to do this as he did not follow company procedures.

The next communication was an e-mail from F.P. on the 30^th of September 2014 informing her that M was happy to include her on the roster for week beginning the 7^th of October 2014 as her sick cert expired on the 5^th of October 2014. She was unable to return to work as her doctor certified her sick until the 2^nd of November 2014. F.P. e-mailed her on the 9^th of October 2014 informing her that an appointment had been made with the Occupational Therapist for Wednesday the 15^th of October 2014. The meeting took place on the 11^th of November as she had an appointment in the hospital. She forwarded an official Grievance letter to F.P. on the 21^st of October 2015. A Grievance meeting took place on the 29^th of October 2015 with A.C., M’s brother. A note- taker was also present and a close friend of hers L.G. attended with her. A.C. was only concerned with her hours of work. He did not investigate her grievance. He stated he did not receive a copy of the formal grievance. She stated that she wanted her grievance addressed before she returned to work. It was agreed that M and B would investigate the grievance.

On the 4^th of November 2015, she received a telephone call from A.C., who wanted to meet her at short notice. The meeting eventually took place on the 7^th of November 2015. A.C. showed her a sample 4 day roster shift and suggested that if she was happy with these hours, she could come back to work on the 16^th of November. She pointed out that her grievance still hadn’t been addressed and it needed to be addressed before she returned to work.

On Monday 24^th of November 2015, she met with A.C. again to hear the findings and his conclusion to her grievance. The conclusion was that her grievance was unfounded. The complaint regarding the treatment she had suffered since her pregnancy was not addressed. He decided she was struggling with her work. This was untrue; it had never been raised as an issue prior to her employer becoming aware of her pregnancy. Her review of the 28^th of May 2014, had indicated that everything was fantastic. It was after she told M that she was pregnant on the 19^th of June 2014 that an alleged issue of her performance arose. It was not the case that she was having difficulty regarding hours of work. She only questioned her roster twice and both of these occasions concerned incidences where she was rostered on 5 or more consecutive late shifts. None of these rosters occurred prior to the disclosure of her pregnancy.

M had changed her hours of work which he then reneged on his agreement and changed them again when he saw fit. Pressure was put on her to resign her position on the 15^th of August 2015. Having made numerous attempts to have her employer address her complaints seriously, she was left with no choice but to bring this particular complaint. She had no difficulty with her work, employer or colleagues prior to her pregnancy. It was only after employer became aware of her pregnancy that everything turned on its head. She is certain that her treatment relates to her pregnancy. As a result of their conduct and behaviour towards her, it made it impossible for her to continue in her employment. Ultimately she was left with no alternative but to leave her employment.

Respondent’s Submission:

The following is a summary of the Respondent’s submission:

The Complainant was not dismissed from her employment, she resigned. The Complainant was not constructively dismissed from her employment by reason of the Respondent’s conduct.

The Complainant was hired as a restaurant supervisor on the 17^th of February 2014. She had no background experience in the Restaurant trade, but expressed an eagerness to develop restaurant managerial experience. The Respondent was impressed by her eagerness and decided to appoint her to the position of Restaurant Supervisor. It became apparent that her lack of experience was causing her problems and the Respondent suggested that she reduce her work load and hours to reduce pressure that he perceived she was under. She was reluctant to do this but subsequently requested that her hours being reduced which involved reducing her workload and role as well. Under her reduced role she was floor supervisor during her shifts but wasn’t really involved in the over all management of the restaurant. Additionally as time went on, she asked that her roster be changed so that she would not have to come in until 1pm. As a result her shifts started at 3pm. Subsequently she requested her shifts commence at 5pm not 3pm. This request was also exceeded to. There was a performance review after three months which was positive.

In August 2014, the Complainant approached M.C. complaining that B, the Manager of the Restaurant, was not there to meet her when she came on at 5pm. She was unsettled by reason of B’s failure to be on the premises at the handover period and his contact with her was limited to texts and notes. M suggested that all 3 should meet so that communication could be improved where necessary. The Complainant, M and B met on the 15^th of August. The Complainant has referred to this meeting as a disciplinary hearing. It was not a disciplinary hearing but a meeting to discuss communication issues. The handover issue was addressed and B confirmed that he would put a more formal process in place in relation to the handover. M.C. also suggested that the Complainant could take the initiative and come in earlier than 5pm to facilitate a more structured handover. At this meeting, the Complainant took out her job description which she had obtained when she initially started. M explained that the job description had changed because of her reduced hours and that it was not possible to perform the tasks and that of floor supervisor within the hours she was working. The management aspect of running the restaurant was taken on by M and B as a result of her reduced hours. The meeting was concluded by M saying it was apparent that there would be need for further meetings to address the issues which included clarifying the Complainant’s job description.

Subsequent to that meeting, the Complainant was off due to stress related illness. She also initiated the Grievance procedure regarding her complaint. F.P. met with the Complainant to address her concerns. The Complainant wanted to pursue a grievance complaint and she submitted same and this was addressed by A.C. having met with the Complainant and the other parties mentioned. An inquiry was undertaken by A.C., the director of the company who had no active part to play in the factual circumstances giving rise to the complaint. After an investigation, A.C. found the complaint was ill-founded.

The Complainant claims she was mistreated by the Respondent by reason of her pregnancy. This is untrue. The Respondent was supportive of the Complainant. When she required time off work either due to her pregnancy or illness or her children, this was accommodated. Prior to her announcement that she was pregnant when the Complainant took on the full role of restaurant supervisor which incorporated some restaurant responsibilities, it was apparent that this entire work load and hours were too much. The Respondent engaged with her at an early stage asking her to consider reducing the hours and role. Whilst the complainant did not want to do so initially, she reflected on same and sometime later requested that the role and hours be reduced. This was accommodated. At two further junctures when she sought to reduce her hours again, this was accommodated, not withstanding the difficulties it caused within the organisation. In August when the Complainant raised concerns with M. the Respondent met with her to hear her concerns and arranged further meetings with her manager so that the concerns could be aired. The Respondent has an open door policy with its entire staff including the Complainant. The Respondent fully investigated the Complainant’s issues and treated her fairly at all times.

Findings:

Based on the evidence presented a the hearing, I find as follows;

The Complainant was appointed to the role of restaurant supervisor without any experience on the 17^th of February 2014. The Respondent was impressed by her eagerness to develop management experience and decided to appoint her to this role. However no programme of training was put in place to assist the Complainant to develop in this role. The Respondent decided to reduce her workload and hours as he perceived she was under too much pressure in the role. She was no longer involved in any overall management of the restaurant.

On the 19^th of June, 2014 the Complainant informed the Respondent that she was pregnant. Within two weeks, the Respondent advised the Complainant that he was hiring a new restaurant supervisor. No mention was made to her about any future training for the restaurant supervisor role that she was originally appointed to. The effect of this decision resulted in the Complainant operating at the level of a floor supervisor.

It would appear from the evidence presented that the Respondent had a change of mind in relation to the appointment of the Complainant to the role of restaurant supervisor. It would also appear that the Respondent had no intention of training the Complainant in the role of a restaurant supervisor. If the Respondent was serious about training her for the role, he would have clearly outlined to her the training that was appropriate for that role and when the various modules of that training would be completed. When the Complainant realised shortly after she announced her pregnancy , that it was unlikely that the Respondent would appoint her to the role of restaurant supervisor, she decided to resign. In the circumstances, she had no choice but to do so.

Decision:

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.

Based on the evidence presented at the hearing I find that the complaint is well-founded and that the Complainant was constructively dismissed from her employment contrary to the terms of the Unfair Dismissals Act, 1977. The Complainant was not given the opportunity to work in the role as a restaurant supervisor which she was originally appointed to. When she announced her pregnancy, it became clear to her that the Respondent had no intention of training her for the role.

In determining compensation, I note that the Complainant has not actively sought work since her dismissal. Therefore, I award the Complainant compensation in the sum of €2,000 for being constructively dismissed. This sum must be paid within 6 weeks of the date of this decision.

Dated:   17 February 2017