ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016679

Parties:

	Complainant	Respondent
Anonymised Parties	A Senior Receptionist	A Boutique Hotel

Representatives

Ms. Siobhan McGowan, Solicitor of Alastair Purdy & Co. Solicitors

Ms. Cliona Kimber SC instructed by Peter Duff Solicitor; of Peter Duff & Co.

Complaint(s):

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-00021679-001	07/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00021679-002	07/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021679-003	07/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021679-004	07/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021679-005	07/09/2018

Date of Adjudication Hearing: 27/02/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015; Section 77 of the Employment Equality Act, 1998; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The issues in contention concern an alleged Unfair Dismissal of a Senior Hotel Receptionist by a Hotel. Related issues regarding alleged Employment Equality complaints, Working Time and Employment Information matters were also involved.

1: Summary of Complainant’s Case:

Act	Complaint/Dispute Reference No.	Summary Complaints
Section 8 of the Unfair Dismissals Act, 1977	CA-00021679-001	Unfair Dismissal – Complainant was denied all his rights to fair processes and procedures in what was in effect an arbitrary Dismissal. Natural Justice was denied and SI 146 of 2000 – the statutory Code of Practice on Grievance and Disciplinary Procedures was nowhere to be seen.
Section 77 of the Employment Equality Act, 1998	CA-00021679-002	The Romanian nationality of the Complainant was a big factor in this case. He had regularly been the subject of negative verbal comments regarding his Nationality. The description of him, given by the Hotel to Gardai, had been clearly racist.
Section 7 of the Terms of Employment (Information) Act, 1994	CA-00021679-003	No formal details of his Terms and Conditions of Employment had ever been supplied
Section 27 of the Organisation of Working Time Act, 1997	CA-00021679-004	The Complainant had never received proper Sunday Work premiums
Section 27 of the Organisation of Working Time Act, 1997	CA-00021679-005	No proper Breaks were ever given to the Complainant.

2: Summary of Respondent’s Case:

Act	Complaint/Dispute Reference No.	Summary Respondent Response
Section 8 of the Unfair Dismissals Act, 1977	CA-00021679-001 Unfair Dismissal	The actions of the Complainant in the period prior to his dismissal were completely unacceptable to any reasonable employer. Serious Customer issues had arisen, the behaviour of the Complainant had been threatening to members of management, especially female Managers. Reasonable instructions to the Complainant were made into big issues. Overall his behaviours displayed a complete unsuitability for his senior role in a small Hotel catering for an exclusive segment of the Market. His actions and completely intimidatory behaviour towards Ms. XF, a member of overall Group Management, were completely beyond any acceptable standard. Ms. XF was left in a state of fear for her own personal safety. The calling for the assistance of the Gardai on the 9th June 2018 the day following the contentious E mail of the 8th was a direct result of this. Any alleged Procedural deficiencies in the actual Dismissal had to be seen and offset in the overall context of the situation. Legal precedent was quoted in support of this point.
Section 77 of the Employment Equality Act, 1998	CA-00021679-002 The Romanian nationality of the Complainant.	The Hotel has a multinational workforce. Any complaints regarding inappropriate nationality of any staff member are completely denied. No Discrimination or Harassment on Nationality grounds ever occurred.
Section 7 of the Terms of Employment (Information) Act, 1994	CA-00021679-003	The Hotel has full Employment documentation. While a copy of the Complainant’s Formal Contract of Employment could not be found, the Starting Employment form was produced which contains much that would be on a signed Statement of Terms and Conditions was supplied. Any possible breach of the Act was inadvertent and purely minor.
Section 27 of the Organisation of Working Time Act, 1997	CA-00021679-004 Sunday Work premiums	Resolutely denied. The Complainant received a Wage that incorporated a Sunday Work element. The applicable Time Limits under Section 27 of the Act were pointed out by the Respondent.
Section 27 of the Organisation of Working Time Act, 1997	CA-00021679-005 Work Breaks	No proper Breaks were ever given to the Complainant. Absolutely denied. The Complainant was always allowed take work Breaks and always received gratis food from the Hotel during these breaks. Again, any possible breaches of the Act were inadvertent and purely minor.

3: Findings and Conclusions:

3:1 CA-00021679-001 Unfair Dismissal and CA-00021679-002 Discrimination/Harassment Employment Equality.

3:2 The Relevant Law.

The role of the principles of Natural Justice are critical and must be seen to be paramount.

The relevant law is set out in the Unfair Dismissals Act, 1977 supported by SI 146 of 2000 – Statutory Code of Practice on Grievance & Disciplinary Procedures. The Employment Equality Act,1998 is the principal piece of Legislation in the Equality Area again is supported by several Codes of Practice.

An extensive body of Legal Precedents exists in both areas.

3:3 Issue of Legal Precedents.

It is now well accepted Law, supported by numerous precedents, that an Adjudication Body, being formerly the Employment Appeals Tribunal or a Rights Commissioner now an Adjudication Officer does not reinvestigate, ab initio a Disciplinary issue. The role of the Adjudicator is to see that Natural Justice was applied in keeping with the Statutes.

The preeminent role of Natural Justice is well set out in Frizelle v New Ross Credit Union Ltd, [1997] IEHC where Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Likewise, the Adjudicator/EAT does not seek to substitute or alter a penalty in a Disciplinary case once it is clear to all reasonable observers that any Employer decision falls within the bounds of “reasonableness” for that Industry.

In an Equality case the major prerequisite is that the Complainant establish a clear prima facie inference of an Equality problem before the case can proceed and the Respondent is required to state a defence. The case does not have to be proven by the Complainant, just a reasonable inference raised.

I refer to Redmond on Dismissal Law -3rd Edition by Desmond Ryan, Bloomsbury 2017, Employment Law by Ms. Frances Meenan – Round Hall 2014 and Employment Equality Law by Bolger, Bruton and Kimber -2012 Round Hall as the preeminent authorities consulted in arriving at the above points regarding legal precedents.

However, all cases rest on their own facts and circumstances and I will now consider these.

3:4 Consideration of the Evidence.

In this case a number of points immediately became obvious.

The Dismissal from Employment was procedurally fatally flawed. Notwithstanding any aspects of Complainant contribution, the accepted ground rules as set out in SI 146 of 2000 – Statutory Code of Practice on Grievance & Disciplinary Procedures SI 146 of 2000 were not in evidence. The Complainant was effectively dismissed by means of an e-mail dated the 8th June 2018 and was confirmed by the interactions with the Gardai the following day at the Reception Desk.

There was no Investigation or Disciplinary process and no Appeal was afforded.

Regarding the allegations of Nationality based Discrimination and Harassment a lot of Hearsay was referenced regarding what was said to and allegedly repeated by the two Gardai who attended the Reception Desk on the 9th June 2018. Verbal exchanges with Managers earlier in the year were also referred to by the Complainant.

Overall, I did not think this largely Hearsay evidence really achieved the required prima facie standard and I set it aside.

3:5 Summary and Conclusion – Unfair Dismissal and Equality complaints.

On clear procedural grounds I find that the complaint of Unfair Dismissal is well founded. Redress is due to the Complainant.

The Employment Equality complaint does not reach a required prima facie level and I find it is not well founded.

Redress will be considered below in Section 4 of this Adjudication.

3:6 Terms of Employment (Information) Act, 1994 Complaint CA-00021679-003 Decision and Redress.

From evidence presented it was clear that the Respondent has a policy of issuing all required Employment documents. It was unfortunate for the Respondent that it did not prove possible to locate a copy of a contract covering the Complainant. He resolutely denied ever having received one other than the Employment Starter From produced by the Respondent.

Verbal evidence was conflicting here. On the balance of probability, I came to the view that a Technical Breach of the Act had probably occurred but was of a minor nature. Accordingly, I award the sum of € 250 Euro in Redress for this breach of a statutory right.

3:7 Organisation of Working Time Act, 1997, Complaints CA-00021679-004 Sunday Work premiums and CA-00021679-005 Work Breaks.

The Respondent argued that SI. No 21/1998 OWT (General Exemptions) Regulations ,1998 afforded an exemption to activities that fall under Schedule 3 (x) “Tourism”. The duties of a Receptionist are fairly standard across all economic sectors and I did not feel that the position of a Hotel receptionist was such as to be a unique “Tourism” occupation. Accordingly, I did not accept this argument.

The Respondent pointed to the Time Limit rules regarding claims of this nature and the follow-on limits on possible redress.

3:7:1 CA-00021679-004 Sunday Premium

It well now established law and Labour court precedent that a Sunday Premium must be separately identifiable, “clearly discernible” in any wage rate. From the written evidence, the Start of Employment form and the standard Employment contract submitted this is not the case here.

According the Act is breached, and redress is due. However, considering the time limits issue and the basically uncontested Respondent oral evidence regarding the number of Sundays that had been worked I award the sum of €300 as Compensation.

3:7:2 CA-00021679-005 Work Breaks.

It appeared that No required Records were maintained by the Respondent of Work breaks afforded to the Complainant although it was accepted that he had availed of breaks during his work shifts.

Having heard the Oral evidence I came to the view that a Technical Breach of the Organisation of Working Time Act, 1997 (OWT Act) had occurred.

The Complaint is well founded, as per Section 27 of the OWT Act, and under Subsection 3(c) I award the sum of € 250 as Compensation.

4: Decision and Redress

Section 41 of the Workplace Relations Act 2015 ; Section 8 of the Unfair Dismissals Acts, 1977 – 2015; Section 77 of the Employment Equality Act, 1998; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the cited Acts.

Act	Complaint/Dispute Reference No.	Summary Decisions. Please refer to Section Three above for detailed reasoning.
Section 8 of the Unfair Dismissals Act, 1977	CA-00021679-001 Unfair Dismissal	Claim is well founded. An Unfair Dismissal took palce. An Award of €20,250 is made. Redress considerations. As per Section 7(1)(c) of the Act I must make an award that is “just and equitable having regard to all the circumstances”. Section 7(2)(f) allows regard to be had to the contribution of the Complainant to the situation and efforts made to mitigate the loss by Section 7(2)(c). Accordingly, I considered an award the sum of € 27,000 being approximately one year’s salary to the Complainant. However, from careful consideration of all the oral & written evidence and the demeanour of the witnesses I came to the view, on the balance of probability, that the actions and intimidatory behaviours of the Complainant particularly towards a Ms. CF required that a 25% reduction in lieu of an employee contribution towards the dismissal be applied. Accordingly, a final Award of €20,250 is made in regard to the Unfair Dismissal. In deciding on a Compensation Award, I had regard to the possibility of Re Instatement or Re Engagement. Neither were applicable in this case as the relationship between the parties had completely broken down. I accepted, in making the award, the evidence from the Complainant of his good efforts to secure other employment.
Section 77 of the Employment Equality Act, 1998	CA-00021679-002 The Romanian nationality of the Complainant.	Claim dismissed as not reaching a required prima facie level of initial evidence.
Section 7 of the Terms of Employment (Information) Act, 1994	CA-00021679-003 No Statement of Terms and Conditions of Employment.	A Technical breach of the Act, Compensation of €250 is awarded.
Section 27 of the Organisation of Working Time Act, 1997	CA-00021679-004 Sunday Work premiums	A Technical breach of the Act – Compensation of €300 is awarded.
Section 27 of the Organisation of Working Time Act, 1997	CA-00021679-005 Work Breaks	A Technical breach of the Act – Compensation of € 250 is awarded.
All awards made above are subject to full consultation with the Revenue Commissioners regarding any personal Taxation that may be liable.

Dated: 5th June 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee