Complainant

Respondent

Anonymised Parties

A Supervisor

A Restaurant

Representatives

  In person

 Managing Director

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-00017377-001

09/02/2018

The complainant was employed by the Respondent as a Supervisor from October 2014 until 29th January 2018. The complaint was submitted to the Workplace Relations Commission (WRC) on 9^th February 2018 and relates to alleged Unfair Dismissal.

Note:

While the complaint form submitted to the WRC on 9^th February 2018 states that the complaint relates to Constructive Unfair Dismissal, it is the complainant’s case that she was dismissed from the employment and did not resign. On that basis, it is the alleged Unfair Dismissal that is the subject of this adjudication decision.

The respondent contends that the complainant was not dismissed from her employment. The respondent stated that it had received complaints from customers in relation to the complainant’s attitude and that this had been conveyed to the complainant in a telephone call from the Managing Director on 29^th January 2018. The respondent contends that although the Managing Director of the respondent was annoyed at having received a further customer complaint in relation to the complainant, he did not dismiss her from her employment on that date or at all. The respondent stated that any mention of a reduction in hours during the phone call was discussed in the context of the upcoming rosters based on the expected needs of the business and not as a means of punishing the complainant or threatening her.

The Managing Director’s business partner stated that the complainant met with him and the Managing Director on 2^nd February 2018 and it was clarified to the complainant that she was not dismissed and that she was rostered to work on the following day (Saturday 3^rd February 2018). The respondent stated that a record of the meeting of the 2^nd February 2018 was emailed to the complainant on 3^rd February 2018 which included the issues she had raised and re-iterated that she had not been dismissed and that she would continue to be rostered for shifts going forward. The respondent stated that the complainant subsequently confirmed during a telephone call that she would not be at work on 3^rd February 2018 due to ill health.

The respondent stated that the complainant replied to its email of 3^rd February 2018 the following day and indicated that she would not be returning to work as she had been dismissed during the telephone conversation with the Managing Director on the 29^th January 2018.

The complainant stated that she was dissatisfied with how she had been treated by the Managing Director of the respondent over a prolonged period of time. The complainant also stated that she was dissatisfied with her roster and that her hours of work had been reduced for no reason. The complainant outlined that she had submitted a grievance and had sought an investigation in line with the grievance procedure included in her contract of employment. The complainant stated in evidence that the Managing Director had discarded her letter of grievance into a waste paper bin and that it had not proceeded to an investigation as requested.

The complainant stated that during a telephone conversation on 29^th January 2018, the Managing Director informed her that he had received another complaint from a customer about her attitude and that he would not be able to give her any more hours. The Managing Director was also alleged to have said that he did not want to talk to the complainant or see her again. The complainant stated that her Husband also works for the respondent and the Managing Director threatened to reduce his shifts as well during the telephone call. The complainant submits that the Managing Director informed her that she was dismissed, and he then ended the telephone conversation.

I have given careful consideration to the submissions of both parties and to the evidence presented in relation to the complaint. The parties also submitted additional correspondence after the adjudication hearings had concluded.

It is clear that the complainant and the Managing Director had a fraught relationship which was not helped by the customer complaints which he had received in relation to her. The complainant considered the Managing Director’s behaviour towards her to be bullying and harassment. The complainant raised a grievance in relation to this issue and stated that the grievance letter had been “thrown in the bin” by the Managing Director and, as a result, was not investigated in line with the respondent’s grievance procedures. While I accept that the Managing Director’s behaviour towards the complainant was inappropriate and harsh and while he may well have discarded her grievance letter and acted at variance with the respondent’s procedures, this complaint relates to an assertion by the complainant that she was dismissed from her employment.

In relation to the alleged dismissal, the Managing Director confirmed at the first adjudication hearing that despite his annoyance in relation to the complaints he had received, the complainant had not been dismissed and that this could be verified by his business partner who was in direct correspondence with the complainant after the events of the 29^th January 2018. The adjudication hearing of 19^th February 2019 was adjourned to allow the Managing Director’s business partner to attend and give evidence in relation to the purported dismissal. The adjudication hearing was reconvened on 1^st April 2019 and the evidence given on that day was that the complainant was not dismissed and would continue to be rostered for approximately the same number of hours as she had always worked per week with a minimum reduction in hours depending on the needs of the business.

The Managing Director’s business partner also confirmed in evidence that a meeting took place between the parties on 2^nd February 2018 in an attempt to resolve the outstanding issues and that the complainant had already been rostered to attend work on 3^rd February 2018 but was unable to do so for health reasons.

Conclusion

In conclusion, while the complainant had a legitimate grievance in relation to the Managing Director’s behaviour towards her, I am satisfied having reviewed the email documentation submitted and having heard the evidence in relation to the meetings that took place in early February 2018, that the worker continued to be rostered for work and on that basis was not dismissed from her employment on 29^th January 2018 as claimed.

In all of the circumstances of this complaint, I am satisfied that the complainant was not dismissed from her employment. Accordingly, I find that the complaint of alleged unfair dismissal is not well founded.

Unfair Dismissal