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-00013297-001

24/08/2017

The complainant started on the 01/04/2014. She had two interviews prior to securing the role at the respondent’s hotel.

The complainant has worked in Hotels for over 40 years. She has an abundance of experience. She was asked to do the breakfast chef role initially. She started at 6am. She was often in the kitchen on her own. She had to cook the breakfast and serve it to the guests. The management were very nice at the start. A new girl came into the kitchen. She was the girlfriend of one of the owners. She soon became the manager. She had absolutely no experience working in Hotels. The complainant tried to teach her everything she knew.

The complainant had the keys of the hotel and she opened it most mornings. The porter was supposed to stay until 7am but often he would leave early meaning there was nobody in the Hotel to attend to the guests until the complainant came in at 6am. That also meant that she was on her own with the guests.

At first, everything was fine. On the 7th June, 2017 the sheriff and the Gardaí came in looking for the manager/owners. She told them that the manager wouldn’t be in for a while and the owners were rarely there. She asked them if they would like to wait and she got them a cup of coffee. The sheriff explained that he was here to take item to the value of € 21,000.00. and showed her a legal document. He asked for the keys of the bar. He said that if she didn’t give them to him he would have to break the door down. She said she would have to call the manager to get authority to hand over the keys. They said they would call the owners too but that it was going to happen anyway. The Sheriff told her that he had explained what was going to happen to the manger and the two owners outside court a few days previously. The manager and her boyfriend, the owner, came into the bar. The barman arrived shortly afterwards. The barman gave out to me and said I should not have given them the keys. This was the start of things going wrong for her.

Later in June and into July there were several incidents that caused the complainant concern. One morning she went in she found about 10 men in the bar. They were friends of the owner’s girlfriend, the manager. They were very drunk as they had been there all night. The complainant was frightened. One or two of them were troublesome. They had been serving themselves at the bar all night. The complainant spoke to Nicola about it. She told her she was frightened. She said ‘ ah sure they are ok, they are my friends’. Then the manager began allowing her friends hang out in the library. This is a room located off the main lobby. They were troublesome and did get drunk at times. Customers were complaining at night because of the noise.She couldn’t say anything because she was often left there on her own with them and they were a bit intimidating.

On the 29th July at 1.15, two friends of the manager attacked the complainant in the lobby. The manager, she later learned, had actually had employed them to help do the room etc. They came in that day and then went to the bar across the road and had a few drinks. The complainant could see them from the bar in the Hotel. When they eventually came back over to work she asked them to get some sugar for a guest, one of them said “ who do you think you are. You are only a fuckin cunt, I know where you live”. A guest overheard them and came to comfort the complainant. When the complainant had composed herself she called the manager. She called the bar man to come down. The bar man said that the same two girls had been argumentative in the bar the night before. The manger called them down for a meeting. They started shouting abuse at her. Then they left.

On the 30th one of the two girls came in and shouted at the complainant from the door “ where are the fucking master keys”. The complainant told her but didn’t engage with her as she was very aggressive. That evening the manager called her into the lobby to pay her. The complainant asked her what she was going to go about the two girls and their abusive behaviour towards her. She said “ I don’t know” Then she said “ I think I will let them go”. She then went over to the bar across the street to have a drink with the same two girls. The following Tuesday morning the complainant was doing breakfast and the receipts. A former employee came in and started cleaning. The complainant wasn’t told that this lady was being re-employed. This former employee was also a drinking pal of the two girls and the manager. The complainant left the hotel at lunch time. She saw the two girls heading into work shorlty after she had left. She knew then that nothing had been done.

On the 2nd August, the owner’s jeep was outside. Their dad was in the jeep. She knew him well . The complainant explained that she was being bullied by the two girls and the manager was doing nothing about it. He spoke to his son, the owner, and told him “ you need to get a proper manager into this hotel and sort this out” The owner told her he would sort it out. She was relieved because she believed he was going to sort this out for her. On the Saturday night she was having a drink in the bar with her family. The former employee came in an poked her in the arm and said “ I am going to get you “ in a very threatening manner. The complainant immediately went out to tell the manager about it.

The following day one of the two girls, boyfriend’s aunty shouted down the street at her “ we are going to get you”. She spoke to the manager again and said if she didn’t do something about it she would have to go to the Gardaí. She said “off you go then”. The complainant was really frightened now as she lived on her own since her husband died two years ago and her home was very close to the hotel.

Two days later the former employee came into the Hotel she pointed at the complainant and said “we are going to get you, make sure of it “. She went to the Gardai and they told her it was the employer responsibility to protect her. She spoke to the manager again. She told her how she was feeling about all of the threats. She said she couldn’t continue if nothing was going to be done about it. The manager said “alright then”. That night the two girls and the former employee were all out drinking again with the manager. The next day the former employee was in doing her job. She called again to see if anything could be done. Nothing was.

A few days later the complainant was in the bar to watch her friend performing when the barman called her over and said he had been told by the manager that he was not to serve me. She was shocked.

She then arranged to meet with the manager. The complainant gave her a copy of the bullying and harassment policy so she could learn how to deal with these issues. She still did nothing about it. The complainant couldn’t go back to work in those circumstances. She has tried to call the owners on several occasions but they refuse to take her calls.

The complainant has tried to get work but she hasn’t succeeded yet. Her confidence has been shattered. She is still afraid of the girls involved. She has been to see the Gardaí to explain the situation in case something was to happen to her. She feels that the owners have been bad mouthing her about the town and this is why she can’t get work but she can’t prove it.

No Appearance

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

7.—(1)

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before   his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”

I am satisfied based on the complainant’s uncontested evidence that from June, 2017 onwards her employer breached its legal obligations to provide the complainant with a safe working environment. She was subject to abusive and threatening behaviour on numerous occasions by other employees of the respondent. She complained about it to her manager on numerous occasions and even when so far as to give the manager the bullying and harassment policy but still nothing was done. She complained to the owners about it and despite assurances that something would be done, nothing was. The complainant stated that her husband took his own life two and half years ago after being subject to a campaign of bullying. She couldn’t let the same thing happen to her. When it got to the stage that she was fearful for her own personal safety both in the workplace and at home she felt she could no longer wait for the employer to do something about it. She felt that they never had any intention of doing anything about it. She left her employment on the 07.08.2017.

Since then she had made attempts to get work but she has been unsuccessful to date. She suspects that the respondent has been ‘badmouthing’ her about the town but she can’t prove it. She also stated that she probably could have put more effort into finding a job but hasn’t because her confidence has been shattered by all her experience whilst working for the respondent.  

I am satisfied that the complainant made every attempt possible to invoke the internal procedure prior to filing her claim with the WRC. I am further satisfied that in all of the circumstances it was reasonable for the complainant to terminate her contract of employment.

I award the complainant € 19,240.00.

I award the complainant € 19,240.00.