Respondent

Anonymised Parties

{A Bar Assistant}

{A Bar}

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-00017856-001

09/03/2018

The Complainant has long service as a part-time bar assistant from 1st January 2006 until 24th December 2017. In May 2017 the group of pubs were sold and the staff were informed they would transfer to the new employer pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The bar she worked in closed in September 2017 for renovations.

The Complainant met with the new owners prior to the takeover and told them she was not happy about how she was being treated by the current management. She was told she would get proper terms and conditions and her hours would be maintained. She said she wanted her hours to be the same as she had family responsibilities. When the pub was closed for renovations as part of the takeover, the Complainant was offered work in another pub at weekends only. This did not suit as she usually had every second weekend off. But she needed to continue working and she agreed to the changes while the renovations were ongoing. She returned to the pub in mid-November when it re-opened.

The Complainant then heard the pub was only re-opening from 4pm. She was concerned and telephoned one of the owners who assured her she would receive her hours per week which were 3-10pm Monday and Wednesday, and every second Friday and Saturday (20 hours). She received her hours for the first 2 weeks only. During the week before Christmas her hours were reduced to 5-10pm Monday and Wednesday, on the roster with consequent loss of wage. She telephoned the Manager and asked why her hours were changed. She said she was losing hours. He said these were the hours she previously got in the pub, and the Complainant said this only happened when the pub got very quiet. The Manager said that’s the way it will be. The then Complainant telephoned one of the owners telling him about her call with the Manager. The owner said it was going to be busy with Christmas parties. The Complainant said that she could set up no problem. He said that one of the young girls wanted to be floor manager. The Complainant said she could not understand why, she was losing hours and they changed her roster without any notice. The owner said the hours were changed and her hours would be changed again after Christmas. The Complainant asked was she not capable of doing the set up for the pub as she had done it for years. The owner said they were very busy coming up to Christmas, with table plans and there were lots of parties booked in. They did not want to stress her out. The Complainant subsequently found the Bar Manager hostile, ignoring her and wouldn’t acknowledge her when she returned to work. There was only 1 party booked in on the following Monday when she came in at 5pm.

She then found out that she was rostered for St. Stephen’s Day (Tuesday ) the following week which was supposed to be her day off. She was never asked about this change. She was sick at Christmas and continued to send in sick-notes. She was very stressed over the situation. The pub continued to send her roster even when she was sick. She decided she could not go back to work there and handed in her notice on 17th January 2018. She expected a phone call in order to try to resolve the situation but no contact was made by the Respondent.

The Complainant is not aware of receiving a contract or employee handbook by email. She did not receive a hardcopy. She was not aware of a formal grievance procedure and brought the problems to the attention of management. The Complainant disputes that she did not want to use computers. She says there was never any discussion about this or training given.

The Respondent took over the bar where the Complainant worked part-time in September 2017. The Respondent agreed in advance with the employees that they would be re-employed in other premises while the renovation works were taking place.

The Complainant was trained in on the IT system in the other pub. They facilitated her leaving early to get an earlier bus home. When the pub re-opened they changed the hours to a later time of 4pm. The Respondent accepts they changed the Complainant’s hours without her consent, as they thought her priority was to get home early and to get 20 hours per week. The bar assistant starting at 3pm to set up had to go up and down the stairs until 5pm when the second person arrived, and also reply to emails. The Bar Manager said he thought the Complainant did not want the responsibility. They were facilitating the Complainant who did not want to deal with emails. She did not use the formal grievance procedure. The Bar Manager said the Complainant only raised the issue regarding hours once. The Complainant sounded upset when she rang in sick on St. Stephen’s Day.

They thought the Complainant was happy with everything from a conversation with one of the owners on Christmas Eve. The Complainant sent in medical certificates for the following 3 weeks. They kept her in a whatsapp group with the weekly roster of her hours as she was submitting weekly certificates, and this is what they do for all staff.

The Complainant called in on 17th January 2018 said she was not able for the work anymore and handed in her notice. One of the owners tried to convince her to stay but she said she made up her mind. The Complainant commenced working for another local bar in late January 2018.

The Complainant’s claims unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that she has been constructively dismissed under Section 1 of the Act. The Act defines   “dismissal” in relation to an employee 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 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”.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached her contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

In this case, the business transferred to a new owner pursuant to the Transfer of Undertakings Regulations 2003 on 1st September 2017. The Complainant met with the new owners and asked that she be given the same hours 3-10pm when the pub re-opened due to family responsibilities. Due to renovation works at the pub, the Complainant agreed to a reduction in her hours to 15 or 16 hours a week and work at the weekend. The Complainant gave evidence that she requires a minimum of 20 hours per week, and would take more hours. She had long service with the pub and had enjoyed working there. Due to family responsibilities she requires her hours to be scheduled on Monday, Wednesday, and Friday and Saturday every second weekend. When she commenced working 11 years earlier, her hours were initially from 10am to 5pm Monday, Wednesday, and Friday and Saturday every second weekend. In the 3 years prior to closure they changed to 2-8pm on the same days as the pub was quiet.

The Complainant never had a written contract of employment with the original owners. The Respondent advised that new contracts were furnished to the staff in November 2017, and this was sent by email. The Complainant is not aware if she was sent a contract of employment and company handbook by email, but did not receive a hard copy. The grievance procedure provides for the issue to be discussed at stage 1 with the employee’s Manager, at stage 2 to contact another Manager or Publican to discuss, at stage 3 to appeal to HR, and finally referral to the Managing Director/Publican whose decision will be final.

I accept the Complainant’s evidence that following her discussions her hours were to commence at 3pm and this was agreed with one of the owners. However, this was only applied for 2 weeks. The Respondent accepts the Complainant’s hours were reduced by them without any notice or consultation with the Complainant prior to Christmas. Tasks were given to the new younger trainee Manager which were formerly carried out by the Complainant. The Complainant was not given the option of training to carry out the IT responsibilities. The Complainant then raised her concerns verbally with the Manager regarding the change of roster without notice, or consultation and loss of 2 hours per day which is a significant reduction in wages as she was only working 20 hours per week. The Bar Manager did not engage with the Complainant regarding her complaint, nor did he advise her of the formal grievance procedure and the steps to be taken. The Complainant then raised her concerns with one of the owners, but he supported the Bar Manager. She did not receive any satisfactory response nor was she advised of further steps to be taken under the formal grievance in relation to her concerns.

The Respondent accepts they breached the Complainant’s contract in reducing her hours, and pay without notice or discussion. It is clear to me from the evidence adduced that the Respondent was well aware of the dissatisfaction of the Complainant with the changes and refused to address this. The Complainant was not advised of the options to continue to object to the changes under the formal grievance procedure. The breach of contract 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 other performance “ Western Excavating (ECC ) Ltd -v- Sharp [1978] IRLR 27.

The Complainant hoped to resolve the matter when she handed in her notice, and I accept her evidence that no attempt to do so was made by the Respondent.

I find that the Complainant was justified in resigning from her post. In the circumstances compensation is the most appropriate form of redress for the Complainant. She has mitigated her financial losses. Pursuant to S7(1) (c (ii) of the Unfair Dismissals Act 1977 it is just and equitable to award 4 weeks wages at 20 hours per week to the Complainant as compensation for unfair dismissal and I direct payment of this by the Respondent.

I find that the Complainant was justified in resigning from her post. Compensation is the most appropriate form of redress for the Complainant. She has mitigated her financial losses. Pursuant to S7(1) (c (ii) of the Unfair Dismissals Act 1977 it is just and equitable to award 4 weeks wages at 20 hours per week to the Complainant as compensation for unfair dismissal and I direct payment of this by the Respondent.

Constructive Dismissal, grievance procedure, breach of contract going to the root of the contract, justified resignation.