Complainant

Respondent

Anonymised Parties

A Waitress

A Restaurant owner

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-00015266-001

24/10/2017

The complainant commenced employment with the respondent on 7/5/2016 as a waitress.

She worked a 30-hour week .

The respondent dismissed her summarily on 2/10/17 for allegedly adverse comments, posted on Trip Advisor about her. She has no contract of employment. Nor was she offered any process to appeal the decision.

She submitted her complaint to the WRC on 24/10/17.

The complainant commenced employment on 7/5/16 with the respondent, working as a waitress or front of house member of staff in the respondent’s restaurant. The respondent did not provide her with a contract.

Her hours varied from week to week. In the 2 weeks prior to her dismissal she advises that she worked many extra hours as the respondent was on holidays.

The respondent on his return on the 2/10/17, having completed a shift together, told her that he was dismissing her with immediate effect, as Tripadvisor had posted a customer’s remark that the” red- haired waitress was abrupt”. She previously had no indication of either customer or management dissatisfaction with her work. She was not given any opportunity to respond or to appeal the decision to dismiss.

Her p45 was sent to the incorrect address and her social welfare payments were thus delayed until the respondent corrected this which 3 weeks following her dismissal he had not.

The respondent did offer to pay her minimum notice but only if she would sign a statement that she would take no further action. She refused to do this not wishing to compromise the pursuit of redress for the unfair dismissal.

She believes that the real reason she was dismissed is because of the support she offered the respondent’s partner in the break- up of that relationship.

Her gross salary according to her p45 for the year ending 2017 was €6985

The complainant took up employment on the 12/12/17 as a front of house manager for a wellness company. Her salary is €30,000.

She is seeking payment for the notice period.

Her preferred remedy is compensation.

The respondent disputes that her average hours were 30; her average hours were 20 a week or less.

He accepts that she has no contract.

Since the submission of her complaint she has been paid her notice and has been paid for the extra hours worked.

The respondent states that the dismissal occurred as set out by the complainant; he received a complaint via Tripadvisor, 2 other complaints from customers and in addition, received about 20 complaints from other members of staff. He accepts that he did not inform the complainant of these complaints.

He states that the complainant was not happy in the job, that other staff observed this and she also worked part-time with another company.

The respondent has apologised to the complainant for his behaviour.

The Act Section 6(1) of the Unfair Dismissals Act, 1977 states that:

“subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

1. The vox-pop type comment on trip advisor that “the waitress with the red hair was abrupt” and which the respondent used as the reason to dismiss the complainant is very far removed from the concept of “substantial grounds” as required by the Act. The use of this comment plus the alleged complaints by 20 fellow employees to dismiss the complainant, offered without the opportunity to examine the truthfulness of them is not far short of mob rule in the workplace.

The complainant’s description of how her dismissal occurred is not in dispute. There was no disciplinary procedure in the respondent’s workplace. There was no process. No advance notice, no examination of the alleged complaints, no opportunity to be accompanied at the meeting which resulted in her dismissal, or right of appeal was afforded to the complainant.

The EAT in   O ‘Halloran v Ballykisteen Hotel Ltd, UD 625/2013, a case involving a manager dismissed for allegedly interfering with company property- he had removed a security camera and re-installed it and discussed it with his manger -held that no wrongdoing had taken place on the basis of the evidence submitted. They stated that

“the company had failed on almost every conceivable ground and showed a complete lack of respect for the complainant as an employee. Where was the fairness here or indeed the basis for any action at all. Where was the investigation? At what point was the claimant given an opportunity to be heard and defend himself? Where were the principles of natural justice adhered to?”

Just as in the latter case the complainant was deprived of any process conforming to the requirements of natural justice.

I find no substantial grounds as set out in section 6(40 of the Act existed to warrant the dismissal. I find the dismissal to be also procedurally fair.

The respondent has apologised to the complainant for his behaviour.

Loss.

The complainant secured employment at a higher salary 10 week following her dismissal.

I award her the full loss of 10 weeks salary which based on her p45 for 2017, plus the respondents estimate of her hours equals €2000.

I decide that the complaint is well founded. The complainant was unfairly dismissed. I decide that the respondent should pay the sum of €2000 euro to the complainant.

Summary dismissal for comments posted on Tripadvisor; no grounds to dismiss; total absence of fair procedure