Complainant

Respondent

Anonymised Parties

A Delicatessen Assistant

A Delicatessen

Representatives

Mark Hyland, Solicitor

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-00023965-001

05/12/2018

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

CA-00023965-002

05/12/2018

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

CA-00023965-003

05/12/2018

The complainant said that she commenced employment as an assistant in the respondent’s delicatessen on November 27th 2017. She was paid €10.00 per hour. She walked out of work before 10.00am on the morning of Thursday, August 16th 2018. She felt that her manager was blaming her for things that were not her fault and she said that the situation was affecting her health and she was stressed out.   On Sunday, August 19th, she received an e mail from the owner of the delicatessen in which he informed her that her employment was terminated. The complainant claims that her dismissal was unfair. She also claims that she did not receive any notice of the termination of her employment and she was not given a contract of employment within two months of her start date.

Early on the morning of Thursday, August 16th, the complainant said that the manager of the delicatessen criticised her unfairly over what she described as “some stuff that happened in the workplace.” The complainant said that she didn’t do any of the things that she was accused of but the manager kept insisting that she did.   When she got upset and was crying, she told the manager that she would have to go home. The manager told her not to be exaggerating and tried to get her to calm down, but the complainant said that although she tried to relax and calm down, she couldn’t and she left the shop just before 10.00am.

In her evidence at the hearing, the complainant said that she sent a text message to the owner of the delicatessen at 10.06am on her way home. She apologised for leaving work. She described working in the café as “overwhelming” as she said she had to supervise other staff to make sure that they did their jobs properly and so that customers are happy with the service.

Later that day, the owner replied to the complainant’s text message by e mail. A copy of this mail was produced in evidence and it shows that the owner explained to the complainant that work-related issues will be raised by the supervisor with staff from time to time and that she wasn’t being singled out for criticism. The owner said that, at short notice, someone had to be found to cover her shift, and that this person would also cover for her the following day, and she was advised not to come to work.

On Saturday, August 18th, the complainant sent the owner an e mail in which she set out how she was trying to look after the business in circumstances where the other employees, in her view, were not doing their jobs properly. On Sunday, August 19th, the owner sent her a mail noting what she had said. He also said that her employment was terminated, because,

“…it is simply unacceptable to leave work as a result of, what I believe to be, reasonable comments about your work performance by your supervisor.

“While this has been a factor in my decision, the main reason for letting you go is that the business continues to decline in the face of increased competition. Coffee sales have declined by nearly 20% and the business does not require the number of baristas it currently employs.”

At the hearing, the complainant said that she received the wages and holiday pay she was due and two weeks’ pay in lieu of notice. The correspondence from the respondent shows that he issued the complainant with a positive reference.

The complainant said that she started a new job on November 22nd 2018 and she was on job-seekers’ allowance from the date of the termination of her employment on August 19th until that date.

On December 12th 2018, the respondent was sent the details of this dispute by the Workplace Relations Commission and requested to indicate if he objected to it being adjudicated upon under section 13 of the Industrial Relations Act 1969. He was asked to respond within 21 days and advised that failure to reply would be regarded as consent to an investigation.   No response was received, and, as stated earlier, the respondent did not attend the hearing. However, in consideration of this dispute, I have taken account of the e mail evidence submitted by the complainant in which the respondent set out his reasons for terminating the complainant’s employment.

From the evidence of the complainant and, from the correspondence submitted at the hearing, it appears that there was a difference in perceptions regarding the issues that were causing problems in this workplace. The complainant felt that others were not carrying out their duties properly and that she was carrying the burden of the fallout from this.   From her own evidence, it seems that she was also being criticised for certain aspects of her work. In an e mail to the complainant on the day she left work early, the respondent said that the manager will raise issues from time to time with everyone “and there is no attempt to single you out personally for criticism.” Despite this apparently conciliatory message, the complainant was dismissed on Sunday, August 19th.

In the case of this employee, it is apparent that she was dismissed without recourse to any procedures, or any indication that her job was at risk or the reasons that would lead to her dismissal. It appears from the respondent’s correspondence that there was no issue with her performance, and the respondent said that he found the complainant to be “a pleasant worker who got on well with customers” and “a good barista.” It seems therefore that she was dismissed because she left work early in her shift on August 16th when she got upset at being criticised and because coffee sales had dropped by 20% and there was an adequate number of baristas employed.

The responsibility to manage the employment relationship falls squarely on the employer and, regardless of the cause of concern about an employee’s behaviour, or a problem of surplus staff, an employee at risk of dismissal is entitled to the benefit of fair procedures. The contract of employment submitted in evidence has no reference to a disciplinary procedure; however, it is now established practice that where there is no such procedure in existence in a workplace, disciplinary matters should be dealt with in accordance with the provisions of the Code of Practice on Grievance and Disciplinary Procedures which is set out in Statutory Instrument 146 of 2000.  

In a case at the Labour Court in October 2018, Beechside Company Limited (trading as the Park Hotel Kenmare) and A Worker, LCR 21798, the complainant who was the hotel’s general manager, had three months’ service with the hotel when he was dismissed. The Court found that he was not alerted to any performance issues, no warning was given that his employment was in jeopardy, he was not afforded the right to representation, not provided with the reasons for his dismissal and not afforded an opportunity to reply. Taking these facts into account, the Chairman, Ms Jenkinson concluded that he was denied his right to fair procedures. The only difference I can ascertain between the Beechside case and the case under consideration here is that the complainant was informed why she was being dismissed.   Because of the failure to engage in any procedures, it is my view that the dismissal of the complainant was unfair.

As compensation for her unfair dismissal, I recommend that the respondent pay the complainant €3,200, equivalent to eight weeks’ pay.

The complainant said that she got no notice of the termination of her employment; however, she was paid two weeks’ wages in lieu of notice.

The respondent did not attend the hearing.

As the complainant was paid in lieu of notice, I find that she received her entitlements under the Minimum Notice and Terms of Employment Act 1973.

As the complainant was paid in lieu of notice, I have decided that this complaint is not upheld.

The complainant said that she received a copy of her contract of employment on April 15th 2018, almost five months after she commenced working for the respondent. She complains that her employer is in breach of section 2(1) of the Terms of Employment (Information) Act 1994, where it is provided that,

“An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment…”

The respondent did not attend the hearing.

In her evidence at the hearing, the complainant submitted a copy of her contract of employment which is dated March 15th 2018. She said that she received this document on April 15th. The document is reasonably comprehensive apart from the failure to include a reference to a grievance and disciplinary procedure.

Because of the delay issuing the contract to the complainant, it is apparent that the respondent is in breach of the requirement to issue a statement of terms and conditions of employment not later than two months after the commencement of an employee’s employment. I therefore find that there is substance to the complainant’s claim in this regard.

I have concluded that this complaint under the Terms of Employment (Information) Act is well founded.   I decide therefore that the respondent is to pay the complainant compensation of €400, equivalent to one week’s pay.

Unfair dismissal, contract of employment, minimum notice