Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Services Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00013447-001

30/08/2017

The dispute concerns allegations of Bullying and Harassment by the Complainant against Managers in an end user Company.

The Complainant maintained that he had been Bullied and Harassed by a particular Manager (of the same nationality as the Complainant) employed by the End User to whom his employer provided services. The primary incident being requests from the Manager (End User) to the Complainant to move LLOP forklifts in March 2017.

Investigations which were carried out were meaningless, the background factors were brushed aside and the Complainant’s efforts to have the case resolved were ignored.

Detailed written and oral submissions were made by the Respondent. The Complaints made by the Respondent were the subject of two investigations (the first investigation jointly with the end User) by the Respondent. The Investigations did not find in the Complainant’s favour and were appealed. Two appeal Hearings took place, the final one being Chaired by a Senior Director. The Appeal was not successful.

In addition, the Respondent commissioned an Independent Review of the case presented by the Complainant and his colleagues. This was carried out by Collier Broderick HR Consultants.

It is a very detailed study of the entire case and all the background factors. The report which was presented on the 20th November 2017 did not substantiate the Complaint’s case.

Accordingly, this claim should be dismissed as unwarranted.

3:1

While the primary incidents in this claim related to the disputed moving of LLOP Forklifts by the Complainant in late March/early April, this case was characterised by the presence of a major overhang from an earlier unrelated matter concerning incidents off the premises (in the car park) between the End User Manager concerned and certain fellow members of the Complainant’s and the Manager’s own nationality.

In the Appeal hearing of the 21st July 2017 with the Senior Director the issue was quite openly ventilated by the Complainants. I found the minutes of this Appeal hearing (presented in evidence) very illuminating as to the entire situation and underlying issues. The Collier Broderick Report also repeatedly emphasises the overhang issue against one End-User Manager.

The Investigation Report fails to identify any clear specific evidence of Bullying and Harassment against the disputed Manager other than what the Investigator considered to be many wide ranging and often non-specific allegations.

There was no substantiated evidence of Bullying or Harassment by the End User Managers involved. Many allegations were made regarding prior behaviours but no prima facie case was presented that would satisfy the Employment Equality Act,1998 for instance. The investigation points to the reasonableness of Management actions in multiple Investigations and Appeals.

Accordingly, and having considered all the evidence presented the Complaints of Bullying and Harassment as set out in the claim form have to be dismissed for want of specific details and time lines.

Regarding the Overhang Issue - in shorthand the “Carpark” incident- was disposed of by proper procedures. A Disciplinary outcome was delivered. This should have closed the matter.

It Is not now the prerogative of the Complainants to continue the matter by indirect means, withdrawal of normal cooperation etc.

Collective refusals to work with the Manager concerned, coordinated sick leave absences etc. are all outside of normal procedures.

However, having heard the oral evidence of the Complainant and his colleagues it is clear that a serious situation has developed between obviously committed and hardworking employees, all of whom have long service, and a member of End User management.

In terms of the Referral under the Industrial Relations Act,1969 and the spirit of the Act, this is an issue that I have to include in my Recommendation.

3:2     Accordingly I recommend as follows

1.       Having reviewed the evidence, the Complaints as filed regarding the claims of Bullying and Harassment against the End User Managers and the moving of LLPOs must be dismissed for want of concrete prima facie evidence.

2.       Unpalatable as it may be to the Complainants the incidents in the Car Park involving the End User Manager must be regarded by the Complainants as now firmly closed. The case cannot be reopened, by unofficial means, to seek a different outcome.

3.       If there are specific detailed concerns of Bullying and Harassment, rather than generalised allegations, against a particular individual/Manager the Respondent has very well-established policies to address this issue. These should be utilised by all parties to achieve a satisfactory outcome. Furthermore, it is important for all parties to this case to note that Bullying and Harassment in the Employee /Manager situation is not a one-way street. The Complainants do not have the right to pressurise the Employers for the removal of any Individual.

4.       However as stated above the Grievances of the Complainants, a mature group of long standing and apparently blemish free, to date, employees, are deeply felt.

Notwithstanding this observation, I recommend that the Claimants Group consider maturely, possibly seeking external Industrial Relations advice, how far they are prepared to go, particularly outside of normal procedures, to pursue them and in the course of their actions endanger their own and their colleague’s employments.

5.       I recommend that the Respondentreview their Internal Communications, Grievance and Disciplinary policies to seek to identify a mechanism where by, what has become a major internal issue, albeit in this case arriving from outside the strict workplace, can be ventilated and resolved.

6.       A suitable Independent Facilitator, with considerable Industrial Relations experience, is Recommended to help re-establish communications and mutual understanding between the parties. This should, if possible, include liaison with the End User.

7.       The Respondent to look at, as part of their Training Remit, how best to support and counsel Managers who might become involved in challenging work based interpersonal situations.

Complainant

Respondent

Parties

Reliana Radu

Sean And Marco Magnetti

Trattoria Magnetti

Complainant

Respondent

Anonymised Parties

An Employee

A Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00013786-001

06/09/2017

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

CA-00013786-002

06/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013786-003

06/09/2017

The Complainant commenced employment, as a waitress in the Respondent's restaurant, on or about 7 May 2017 (as per Respondent's submission).

Background:

The Complainant had a pre-existing condition/physical scarring of the back of the neck which runs from side-to-side due to a knife attack which occurred 11 years ago. For psychological reasons, she needs to have the scar continually covered by keeping her hair down at shoulder length. Furthermore, it was stated that, for physical reasons, it was painful for her to have her hair tied up, due to tendon and nerve damage at the back of her neck, as the scar is deep and therefore caused substantive tendon and nerve damage. This pre-existing condition/disability was notified to her employers from commencement of her employment.

The Respondent's restaurant had a policy requirement that all staff with long hair had to wear it tied up. When the Complainant explained the above pre-existing condition/disability to the Respondent, she was permitted to wear her hair "half up", which allowed the back of her hair to cover the neck and shoulders while the fringe was tied up.

According to the Complainant, this arrangement became an established and mutually agreed term of the Complainant's employment, which was respected and adhered to by all sides. The Complainant stated that during her employment with the Respondent she worked under the supervision of a number of different managers. The Complainant stated that all her managers understood the reasons for keeping her hair partially "down" and there had been no problem, until the events of 23 August 2017.

Consequently, the Complaint stated that the Respondent, its servants and agents, including the Respondent's managers were all aware of the Complainant said "disability". It was further stated that all of the aforementioned had agreed and acquiesced, for a considerable period of time, to the special arrangements regarding how the Complainant wore her hair. According to the Complainant, these arrangements were in place for several months.

Therefore, against this background, the Complainant set out the various aspects of her complaint, all of which revolved around an incident that occurred on 23 August 2017.

Incident on 23 August 2017:

The Complainant commenced her shift on 23 August 17 at approximately 6:00 pm. There was a couple in the restaurant, who had ordered food outside and they subsequently indicated that there were a little unhappy with the meal. The Complainant stated that she routinely asked whether or not the customers would like anything else (e.g. coffee or desert). The Complaint stated that she gave the customers coffee as ordered.

It is stated that the Complainant’s Manager became aware of the customer complaint following which she publicly challenged and admonished the Complainant for not informing her. According to the Complainant, during this discussion both she and the Manager were speaking loudly in Italian (their native language) in front of the customers in the restaurant.

The Complainant also stated that the Manager indicated that she should not have given complimentary coffee. The Complainant stated that she clarified that she did not give any complimentary coffee and informed the Manager that they were included on the bill as, in her view, this wasn't a formal complaint about the food, just mere feedback.

The Complainant stated that, at approximately 9:00 pm, she was approached by the Manager who admonished her for the manner in which she was wearing her hair. According to the Complainant, the Manager insisted that she should not be wearing her hair down and demanded that she wear it "up". The Complainant stated that she explained to the Manager why she could not do so. The Complainant kept on working and the Manager followed her around, further harassing and upsetting her. According to the Complainant, the Manager demanded to know why she was not wearing her hair "up". According to the Complainant, she again advised the Manager that she could not do this and indicated to the Manager that she knew why this was the case.

According to the Complainant a stalemate then ensued. The Complainant stated in evidence that she asked the Manager whether she wanted her to leave. The Complainant further stated that the Manager responded by saying that she had to leave unless she put her hair "up". According to the Complainant, she repeated the question as to whether the manager wished her to leave. The Complainant stated in evidence, that the Manager confirmed she wanted her to go and not come back any more.

The Complainant stated that she was gravely embarrassed by the unfolding situation and had no alternative but to leave. She found the experience extremely humiliating and embarrassing particularly, as it happened in front of customers and staff and acquaintances of hers.

Based on the above incident, the Complainant's specific complaints were set out by her legal representative as follows:

CA-00013786-001 (Employment Equality Act, 1998)

It was stated that the Complainant's employment was terminated on the basis of a pre-existing condition/disability, which amounts to discrimination and contrary to the Employment Equality Acts. It is further claimed that "reasonable accommodation” was not afforded to the Complainant as is required under Section 16 (3) (b) of the aforementioned Acts.

The Complainant's representative referred to the provision of the aforementioned Section of the Act whereby it states that the provision of appropriate measures or "reasonable accommodation" should be made even where it entails "nominal cost". According to the Complainant's representative the "reasonable accommodation" sought by the Complainant in this case entailed no additional cost to the employer. In addition, it was stated that no issue had been raised by the Respondent as to any significant underlying reasons why it could not continue to be afforded, particularly where it had been afforded for many months previously.

In support of the submission set out above, the Complainant's representative cited several legal cases.

CA-00013786-002 (Terms of Employment (Information) Act, 1994)

It is contended on behalf of the Complainant that she was not provided with a contract of employment pursuant to the terms of the Terms of Employment (Information) Act 1994 and, in particular, Section 7 thereof.

It was further contended that the Complainant was not afforded an opportunity to complain about her treatment or a means of so doing, as required by legislation.

CA-00013786-003 (Minimum Notice and Terms of Employment Act, 1973)

The Complainant contends that her employment was unfairly terminated without any forewarning or any payment of notice in accordance with the Terms of Employment (Information) Act 1994.

Background:

The Respondent stated that the Complainant was interviewed for the position by a Manager. The Respondent denied that the Complainant ever told this manager about the scarring on the back of her neck. The Respondent also denies that the scarring was notified to them by the Complainant. It is further contended that neither the Respondent, nor the manager in question, was aware of the Complainant's scarring on the back of her neck until after she lodged her complaint.

The Respondent stated that there are two managers in the restaurant. When either of these managers are on duty, the waiting staff would report to them. It was further stated that, in the event that neither manager is on duty, the most senior waitress on the day will assume the role of manager for that shift.

In addition, the Respondent provided documentary evidence in relation to the procedures that waiting staff must follow when dealing with customer complaints. The Respondent claims that the Complainant was trained in and aware of these procedures, which are clearly visible in the staff area of the restaurant.

Incident on 23 August 2017:

With regard to the incident on 23 August 2017, the Respondent stated that on the evening in question neither of the two managers were rostered to work. Consequently, the most senior waitress on that shift (Ms Z) assumed the role of Manager. The Respondent further stated that Ms Z had been in their employment for eight years.

The Respondent stated that on the evening in question, the Complainant was rostered to work from 6:00 pm to 11:30 pm. I was further stated that there were two other waiting staff working that evening, in addition to the Complainant and Ms Z.

According to the Respondent's evidence, at approximately 8:00 pm, a table of two customers were paying their bill at the till close to the exit of the restaurant. It is stated that one of the other two waitresses was dealing with this transaction. It is stated by the Respondent that, when paying, when paying, the customers complained about the food and the service provided to them by their waitress, who was the Complainant.

The Respondent stated that Ms Z noted this interaction and when she queried this with the waitress who dealt with the customers at the till, she was informed about the customer's complaint. Ms Z stated, in her oral evidence at the Hearing, that she asked to speak with the Complainant at the back of the restaurant, out of sight of other customers.

According to Ms Z’s evidence, the Complainant admitted that the customers had complained to her about the food but she thought it wasn't important and had not reported it. Ms Z stated that she then asked the Complainant how she had dealt with the customer complaint and why she hadn't followed the appropriate procedures, including informing the supervisor in charge or the Head Chef.

Ms Z stated that the Complainant admitted that she did not offer any apology to the customers nor did she deal with the complaint in accordance with company procedures. According to Ms Z’s evidence, when she asked the Complainant why she had not followed the correct procedures, the latter became very irate and aggressive. It is stated that the Complainant raised her voice and was shouting loudly at Ms Z. It was also confirmed that they were both speaking in Italian.

According to Ms Z's evidence, the Complainant was wearing her hair long at the time and as they were speaking, she was pulling at her hair. As a result, Ms Z stated that she requested the Complainant to keep your hair back behind her shoulders and that it was not hygienic for her to be touching or pulling at her hair when she was serving food.

Ms Z stated in evidence that, at this point, the Complainant became even more aggressive and shouted at her in Italian " lo me na vado”, which translates in English as "I am leaving". According to Ms Z's evidence, the Complainant pulled off her apron and threw it, aggressively, into the bin before clocking out and leaving the restaurant.

It was stated that Ms Z was very upset as a result of this altercation, however, it was not until approximately 11:30 PM, after the restaurant had closed, that she had an opportunity to advise one of the directors of the Respondent what had transpired.

According to the Respondent's evidence, the Complainant was not rostered to work again until two days later, 26 August 2017. The Respondent stated that on the day following the incident between the Complainant and Ms Z, (24 August 2017) one of the Respondent’s directors (Mr S) telephoned the Complainant's number in order to speak to her to discuss the incident. As the Complainant did not answer the phone, Mr S sent a text message to the Complainant asking that she contact him when she had an opportunity to do so. In this regard, the Complainant supplied documentary evidence of the text which was sent to the Complainant on 24 August 2017 at 21:33.

The Respondent stated that, on the following day (25 August 2017), Mr S rang the Complainant's mobile number at 9:48 AM. However, the call went to voicemail. Mr S left a voice message asking the Complainant to contact him. In further evidence, it was submitted that Mr S tried to contact the Complainant later that morning (at 10:16 a.m.) but, at this point, the phone was switched off. Having failed to contact the Complainant, Mr S contacted a staff member, who was also a friend of the Complainant, and asked her to pass on a message to the Complainant requesting her to contact him.

The Respondent stated, in evidence, that the Complainant never responded to any of the attempts to get in touch with her. According to the Respondent's evidence, at approximately 3:00 pm on 25 August 2017, they received a letter, by email, from the Complainant's solicitors, alleging unfair dismissal and seeking compensation.

Against this background, the Respondent's legal representative proceeded to respond to the specific elements of the Complainant's complaints as follows:

CA-00013786-001 (Employment Equality Act, 1998)

In relation to the claims under the Employment Equality Act, the Respondent relied initially on the definition of discrimination as set out in Section 6 (1) and Section 6 (2) (g) of the Acts.

In particular, the Respondent's legal representative placed a significant relevance on Section 85A of the Acts, which sets out the burden of proof that applies in a claim for discrimination. In support of the position in this regard, the Respondent's legal representative made reference to the Labour Court case of: Melbury v Valpetters (EDA/0917)

Based on the above, it was submitted by the Respondent that the Complainant has failed to meet the burden of proof set out at Section 85A of the Acts.

Without prejudice to the above contention, the Respondent's legal representative moved on to make submission in relation to the matter of disability and resulting impairment. According to the Respondent, the Complainant seems to be saying that she is a person with a disability, within the meaning of Section 2 of the Acts, or disability is defined as, inter alia, "the malformation or disfigurement of a part of a person's body".

The Respondent submits that, notwithstanding that they were not aware of the Complainant’s scarring, even if it was to be considered a "disability", there must be a degree of impairment arising from the disability in order for her to have a stated case. According to the Respondent, there was no impairment resulting from the Complainant's alleged disability and certainly no medical evidence to support the case that her scarring was a disability. In the furtherance of this point, the Respondent's legal representative referred to the Circuit Court case of “Humphries v Westwood Fitness Club” [2004] E.L.R 296.

It was further submitted, on behalf of the Respondent, that the Complainant must first be able to show that her scarring, which she claims is a disability, restricted her capacity to carry out her work. The Respondent stated that, in addition to not knowing about scarring, as far as they were concerned the Complainant was not restricted in her ability to do her job.

The Respondent further submitted that, the correct approach should be one of considering the definition of "disability" in the Disability Act 2005, which defines a disability in relation to a person, to mean a substantial restriction in the capacity of the person to carry on a profession, business or occupation… by reason of an enduring physical, sensory, mental health or intellectual impairment.

The Respondent submitted that the Complainant has no such disability and, therefore, was not discriminated against under the Employment Equality Acts.

CA-00013786-002 (Terms of Employment (Information) Act, 1994)

In response to this element of the Complainant's complaint, the Respondent stated that the Complainant was taken on at a very busy time of the year for the business. It was stated that the Respondent usually issues written contracts to all employees within one month after the start of employment (i.e. at the end of the probationary period).

The Respondent stated that, due to an oversight on their part, a written contract of employment was not issued to the Complainant in this instance. The Respondent provided documentary evidence of the standard employment contract issued to all staff. They further stated that they had recently retained the services of an outside company to assist them in complying with their HR/employment legal obligations.

In conclusion, the Respondent stated that, in light of the Complainant’s relatively short period of employment from 7 May 2017 to 23 August 2017, she suffered no real prejudice in an employment contract not be issued to her.

CA-00013786-003 (Minimum Notice and Terms of Employment Act, 1973)

In relation to the complaint made under this Act, the Respondent submitted that, as the Complainant left her employment of her own volition, there was no breach of the terms of the Act.

Based on the evidence submitted by both the Complainant and the Respondent, in response to the complaint, it became clear that the first issue for determination was whether or not a dismissal had occurred in the first place.

The key event, in considering whether or not the Complainant was in fact dismissed, was the altercation between the Complainant and the acting Manager (Ms Z) on the evening of 23 August 2017. It is clear from the evidence adduced, that the altercation arose out of a customer complaint involving the Complainant, which had subsequently come to the attention of Ms Z. The evidence further suggests that a somewhat heated conversation took place between the Complainant and Ms Z, when the latter questioned the former as to why she had not followed the company procedures when she received the complaint from the customer.

From the evidence adduced at the Hearing, the Complainant does not appear to have followed the clear procedures set out by the Respondent in relation to the handling of customer complaints. The oral evidence presented at the Hearing by Ms Z, also indicated that during the discussion the Complainant was pulling at her hair, with the result that she was requested by Ms Z to put her hair back, as it was unhygienic to be touching it while serving food.

It appears from the evidence presented, that the reference to tying back her hair, elicited a strong reaction from the Complainant. In her evidence, the Complainant stated that the Respondent was fully aware of the situation regarding her scarring and had agreed, as a consequence, not to require her to have her hair fully tied back. The position, as espoused by the Complainant in this regard, was contradicted by the oral evidence of three witnesses at the Hearing.   Consequently, I am satisfied that the issue in relation to tying back her hair could not have assumed the significance, as alleged by the Complainant, during the verbal interaction with Ms Z on the night in question.

What is clear from the evidence presented, is that, at a point in the altercation, the Complainant informed Ms Z that she was leaving and proceeded to remove her apron, clock out and leave the premises. The evidence also confirms that, in response to the Complainant stating she was leaving, Ms Z commented: "if you go, don't come back". In her oral evidence at the Hearing, Ms Z stated that she did not mean for the Complainant to leave for good. Rather, she stated that she was referring to the interaction taking place at that time and just did not want to argue any more.

The grounds for the Complainant's complaint of dismissal is clearly based on the above comment from Ms Z. The Respondent claims that Ms Z has no role in or authority to employ/dismiss staff. While the comment made by Ms Z's may have been somewhat open to interpretation, I am satisfied that it is unreasonable to construe that the Complainant was being dismissed. Both parties to the altercation had clearly become animated or emotional and I believe, in that context, it would be unreasonable to attach any major significance to the final comments of either party.

Notwithstanding the above, I find that the events of the following days (24/25 August 2017) to be of much greater significance in determining whether or not the Complainant was actually dismissed on 23 August 2017. In this regard, I am significantly influenced by the fact that one of the Respondent's directors, Mr S, made several attempts to contact the Complainant, in order to discuss the issue with her. The documentary evidence presented at the Hearing, in this regard, clearly demonstrates that the Respondent made every possible effort to address the issue with the Complainant. However, other than issuing a solicitor’s letter, the Complainant made no effort to engage with her employer.

Consequently, in a context where a comment made by the acting Manager, (who had no authority to dismiss the Complainant), in the heat of a charged verbal interaction with the Complainant and which could not, in my view, be reasonably construed as a formal instruction on behalf of the Respondent and where the Complainant subsequently failed to respond to and/or engage with the Respondent, I find that it would be wholly unreasonable to suggest that a dismissal had taken place.

Therefore, taking all of the above into consideration, I find that the Complainant was not dismissed by the Respondent. On the contrary, I find that the Complainant left her employment of her own volition and cannot, therefore, claim that she was dismissed.

Having reached the above decision in relation to whether or not a dismissal had occurred, I set out below my specific findings/considerations in relation to the specific elements of the Complainant's complaint:

CA-00013786-001 (Employment Equality Act, 1998)

Based on the findings set out above, that no dismissal took place, I find that there is, therefore, no basis to the Complainant's claim of discriminatory dismissal.

CA-00013786-002 (Terms of Employment (Information) Act, 1994)

The evidence presented shows that the Complainant was not provided with written terms and conditions of employment within two months of the date of commencement of her employment. Consequently, the Respondent is in breach of Section 3 of the Act.

Notwithstanding the above, I note the Respondent’s submission to the effect that contracts of employment are normally provided to all new employees and that, in this particular case, the contract did not issue due to an oversight on their part. The Respondent provided evidence of the standard contract of employment which normally issues to staff. In addition, evidence presented on behalf of the Respondent indicates that external consultants have now been engaged to ensure that no such oversights take place in the future.

I am also influenced by the fact that the Complainant's employment with the Respondent was only three months in duration.

Consequently, based on the above, I have factored mitigating circumstances into my decision in relation to the level of compensation to be awarded to the Complainant. On that basis, I award the Complainant the sum of €250, which I consider to be a fair and equitable compensation in the circumstances.

CA-00013786-003 (Minimum Notice and Terms of Employment Act, 1973)

In light of the finding under CA-00013786-001 above, I find that the Complainant’s complaint under this Act, must also fall.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decision on the various aspects of the Complainant’s claims as follows:

CA-00013786-001 (Employment Equality Act, 1998)

Based on the findings set out above, that no dismissal took place, I find that there is therefore no basis to the Complainant's claim of discriminatory dismissal. Consequently, the Complainant's claim in this regard must fall.

CA-00013786-002 (Terms of Employment (Information) Act, 1994)

With regard to this element of the Complainant's claim, I find the Respondent to be in breach of the Act and, therefore, I find in the Complainant’s favour and award her the sum of €250.00, based on the considerations are set out above.

CA-00013786-003 (Minimum Notice and Terms of Employment Act, 1973)

In light of the finding under CA-00013786-001 above, I find that the Complainant’s complaint under this Act, must also fall.