Complainant

Respondent

Anonymised Parties

A Waitress

A Pub and Restaurant

Representatives

 HR Consultant

A Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00008591-001

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00008591-002

05/12/2016

This dispute concerns a Waitress employed by the Respondent Organisation. It was initially heard on the 30th March 2017. Complainant evidence was presented in detail. However, the Hearing was adjourned by consent of the parties to allow the Respondent representative, Company Director, Mr. D, gather evidence and witnesses to support his positon. He maintained that he had only recently become involved with the case as the General Manger/Director named by the Complainant was no longer in the Respondent’s business /employment.

Following a number of reminders from the Workplace Relations Commission the case came for hearing again on the 17th of January 2018.

At this Hearing the Representative for the Complainant was unable to attend due to a sudden illness but requested the Hearing to continue on the basis of the evidence he had presented at the March 2017 hearing. The Complainant, in person, had no further evidence to add. She apologised, via her Representative, for her non-attendance in January 2018. She had been compelled to seek work overseas and would not be back in Ireland until the Autumn of 2018. The delay between the Hearings had proved financially impossible for her.

The Respondent did not attend the second January 2018 hearing and no further evidence or witnesses were presented.

It is important to note that on the 1st September 2017 the WRC had written to the parties as set out below.

I refer to the preliminary hearing on the 30th March 2017 into the above case which was adjourned to allow both parties provide additional information to the Adjudicator and have witnesses present at a resumed hearing.

To date I have received no additional information.

In the interests of Natural Justice, Mr. McEntee, Adjudication officer, is now rescheduling this hearing for the earliest possible date and will proceed to conduct an Investigation and issue a decision on the basis of the evidence already on file and any new evidence, witness testimony etc. presented on the day of the resumed hearing.

The hearing on the 17th January 2018 proceeded on this basis.

1:1         CA-00008591-001 The Unfair Dismissal complaint:

The Complainant was a very experienced Bar Person and Waitress. She had moved to the Respondent at the request of the Manger. Mr. F in October 2015. After a few weeks difficulties arose between the Complainant and the Supervisor, Ms X, on the latter’s return from Maternity Leave. To seek to resolve matters the Complainant requested a move from the Restaurant to the Bar -away from Ms.X. Ms. X did not agree to this change and effectively demanded that the Complainant be removed from the business completely. The Manger Mr. F did not agree and Ms.X appealed over his head to the Owner / Mr.Y. He was sympathetic to her story but he did not continue her employment. Her employment ended effectively on the 6th June 2016. Mr. Y, the then Director /Owner, refused to offer the Complainant an explanation.

A fellow Staff Member, a former colleague of the Complainant, gave oral evidence in support of the Complainant. She was of the view that the Supervisor, Ms.X, had treated the Complainant badly.

1:2     CA-00008591-002 – The Bullying and Harassment complaint.

The evidence in this Complaint followed closely the evidence in the Unfair Dismissal complaint and was presented simultaneously.

2:1       CA-00008591-001 The Unfair Dismissal complaint

The Director, Mr D, who attended the Hearing on the 30th March 2017 admitted that he was new to the case. However, he produced a lengthy written document signed by Ms. X, the Supervisor, concerning the case.

This document was open for comment at the initial hearing. The Complainant’s Representative noted the absence of the document’s author Ms. X and his according inability to cross question her on its contents. Mr. D offered the view that the document was genuine and accurately reflected the view of the Supervisor. I was of the view that Mr. D’s his evidence was genuine if somewhat personally limited. It was at this stage in proceedings that the adjournment to a second hearing was proposed to allow more Respondent witness to be called.   The Hearing was left in no doubt that Ms. X would be necessary for Second Hearing.

Ms. X’s signed document detailed several Managerial difficulties with the Complainant particularly her issues with staying late in the Premises. The Respondent business was effectively a Restaurant that had a late alcohol licence - a Night Club. After Patrons finished their Restaurant meals they generally retired to the late Bar.

The Complainant lived at some remove from the City Centre location of the Business and found the need to stay after public transport times very inconvenient. She had on occasions, it was alleged, inappropriately hassled patrons in the Restaurant to get them to leave and go to the Bar. This would allow her to go home. The Complainant had also changed the Rostering of staff without seeking prior management clearance. It was the view of the Supervisor that following an exchange of heated words with the Complainant on a night in late May 2016 the Complainant had effectively resigned from the Business rather than simply move out of the Restaurant to the Bar area. The Supervisor had intended to give her a Warning only and never to dismisses her.

1:2       CA-00008591-002 – The Bullying and Harassment complaint.

The evidence presented here was similar to the Unfair Dismissal complaint.

Bearing in mind the difficulties with evidence and witnesses I proceeded to formulate a view based on the oral and written material available. This was in keeping with the WRC letter to the Parties on the 1st September 2017. As both Complaints were heard simultaneously and the evidence in both was similar I make a Recommendation to encompass both.

It was clear to me that the relationship with the Supervisor, Ms.X, had been un-unhappy one for the Complainant. However, it was also clear the “Staying late” issue had led to much of the difficulty as had the issue of the Complainant and colleagues making unauthorised roster changes.

The Complainant was very experienced in the business and taking instructions from a Supervisor was always open to difficulties developing.

The situation was not helped by the apparent absence of any formal staff procedures in the area of Grievance or Discipline. There may have been but no evidence was produced to demonstrate their existence.

The meeting in late May between the Complainant and the Supervisor had not gone well. Heated words had been exchanged. The Owner Manager, Mr. Y, did not appear to want to get involved and conducted no apparent investigation of the Complainant’s grievances/complaints regarding Ms. X. No formal employment procedures such as detailed in SI 146 of 2000: Code of Practice on Grievance and Disciplinary Procedures seemed to have been adopted.

In conclusion and based on the limited evidence I came to the view that it was very probable that an Unfair Dismissal had taken place in early June 2016. However, it was also equally probably that the Complainant was far from a completely innocent party in the proceedings.

As a foot note I did not really see any evidence of any sustained Bullying and Harassment. This case was a Managerial dispute between a Supervisor and an Employee over a relatively short space of time.

In final conclusion, I make a Recommendation, under the Industrial Relations Act ,1969 that a sum of 4 weeks’ gross pay (€450 X 4 = €1,800) (pay rates from the complaint form) be paid but reduced by a factor of 50% in lieu of the Complainant’s contribution to the Dismissal giving a final figure to the Awarded of €900.

This sum to be paid with six weeks of the issue of this recommendation. The Taxation of the Award to be a matter on which the advice of the Revenue Commissioners should be sought.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00008591-001

An Unfair Dismissal is found.

An award under the Industrial Relations Act, 1969 of € 1,800 is Recommended but reduced by 50% as reflecting the Complainant’s contribution to the Unfair Dismissal. The final Recommendation is for an Award of €900 only.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00008591-002

No Bullying and Harassment procedures were produced in evidence by either party. The evidence did not appear to warrant a finding of Bullying and Harassment. This complaint is dismissed.