ADJ-00006634

Complainant

Respondent

Anonymised Parties

A Chef

A restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00008731-001

12/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008731-002

12/12/2016

The complainant worked as a chef for the respondent and claims she got paid cash for the first couple of weeks, which period, if included in her service, would bring her to just over 12 months employment with the respondent. She was dismissed by the respondent and claims that the appropriate disciplinary process was not applied. She commenced work immediately in another employment on superior conditions. She was not given a copy of the terms of her employment with the respondent

The Complainant commenced work as a chef in the respondent’s restaurant in the middle of July 2015. She got paid in cash for the first couple of weeks and then was put on the system. She recollects that she was working on the August bank holiday. Shortly after starting she started having problems with the use of the rules of HACCP and tried during her shifts to make sure these rules were correctly implemented. She was off for a few days each week and when she came back she would find everything in disarray. This caused her considerable stress and frustration and she complained frequently to her manager. On 1^st August 2016 the complainant was called to a meeting and when she arrived there were three members of the kitchen staff also there.   The Head Chef said that she had called the complainant in to see what was happening. During this meeting the employer (Ms A) came in and in front of others said that the waitresses were saying that the complainant’s plates were too hot to handle and that her son had had to wait 40 minutes for lunch one Sunday when had had a flight to catch.   Ms A then said in front of everyone that the complainant’s P.45 and wages and holiday pay would be ready for her to collect.

The complainant started a new job on 3^rd August 2016 immediately after her dismissal on more hours than she had with the respondent.

The complainant did not receive a copy of her terms of employment as required.

The respondent contends that the complainant’s employment commenced on 10 August 2015 and terminated on 31^st July 2016 – less than 12 months - and therefore is outside of the scope of the Unfair Dismissals Act. The respondent denies that payment was ever made in cash and, in any event, an employment based on illegal payments would not be enforceable in law.

On 30^th March 2016 the complainant received a verbal warning with regards to her attitude to other members of staff, her shouting and swearing and her temper tantrums. She received a second warning on 2^nd May for shouting at Ms A and other members of staff. In the middle of June a member of staff left as she could no longer work with the complainant. Waitresses were threatening to leave rather than work with her and it got to the stage that Ms A was concerned she was going to lose 2 or 3 staff. Ms A called a meeting on 31st July 2016 of all members of the kitchen staff and asked them to sit down and discuss the problems and see if agreement could be reached. On her return half an hour later no agreement had been reached and Ms A informed the complainant that she was faced with a choice of losing 3 members of staff or alternatively, 1 member (the complainant). Ms A asked the complainant what would she do and the complainant shrugged her shoulders. Ms A then told her she would have to let her go.

At no stage did the complainant ever ask for her terms of employment.

The respondent has acknowledged that the complainant was dismissed. There was no disciplinary procedure used and the complainant was not afforded natural justice in order to address the issues complained of.   Usually this would be likely to result in a decision to uphold the claim of unfair dismissal. However, the Unfair Dismissals Act requires that a complainant has a minimum of one year’s continuous service in order for the Act to apply. In this instance there is a dispute between the parties as to the start date. The evidence presented by the complainant to support her contention that she was paid in cash for the first week/ two weeks’   of her employment was simply that she had lodged money to her bank account in that period. This is not sufficiently persuasive for me to accept that she has met the service requirement under the Act and therefore I find that the Act does not apply to her.

The respondent has confirmed that the complainant was not given a statement of her terms and conditions of employment and therefore I declare that the complaint under section 7 of the Terms of Employment (Information) Act, 1994 is well founded.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

I find that the Act does not apply to the complainant and therefore her claim fails.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint made under that Act.

I find that this complaint is well founded and I order the respondent to pay €500, being the equivalent of two week’s wages, to the complainant.

Unfair Dismissal. Less than 12 months’ service. Terms of employment.