Complainant

Respondent

Anonymised Parties

A floor waitress

A Gastropub

Representatives

Kate Hughes                                        Carley and Connellan

Connolly O'Neill Solicitors

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-00017633-001

23/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017633-002

23/02/2018

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

CA-00017633-003

23/02/2018

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

CA-00017633-004

23/02/2018

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

CA-00017633-005

23/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017633-006

23/02/2018

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

CA-00017633-007

23/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017633-008

23/02/2018

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

CA-00017633-009

23/02/2018

The Complainant worked as a waitress on the Respondent premises. The employment was alleged to have been terminated by the owner Manager after a protracted period of ill health. The Complainant says the manner of the termination amounted to an Unfair Dismissal.

The Complainant was represented, and I was provided with comprehensive submission and supporting documentation. I additionally heard from the Complainant herself.

The Respondent strenuously denied the many and varied allegations made herein. The Respondent was represented, and I heard evidence from the Owner/Manager in this regard.

I have carefully considered the evidence adduced in the course of this hearing which first came before me on the 22nd of June 2018 and which required a second date on the 8th of November 2018.

The Complainant herein is a Polish National who had been working with the Respondent for four years. I accept that the Complainant had an excellent work record and that there were no disciplinary issues. The Complainant describes a chronic illness which beset her in the course of 2017. As she had no health insurance it was difficult for her to get a diagnosis and treatment in this country. Her employer was aware that the Complainant had been ill though perhaps was unaware of the extent of the problem. The onus was on the employee to find a replacement from amongst the other floor-staff if she was unable to attend for work. I note from the figures provided that the Complainant’s earnings had not dropped off in the course of 2017, so that it is not clear how much time she was missing through ill health. I therefore cannot be sure that the employer was particularly aware of the full extent of her illness.

In any event the Complainant decided to travel to Poland in late August/early September of 2017 with a view to getting her medical condition diagnosed and treated. I have been shown a text from the Complainant to her boss (DC) just prior to heading to Poland and this text together with the few others available to me tend to show a reasonably good relationship. The text – dated the 26th of August apologises for becoming frustrated with and punching a till and says how much she will miss the workplace and looks forward to coming back and making 10,000 coffees. I am satisfied therefore that the relationship between these two people was reasonably good at this time. The Text does allude to the fact that the Complainant is hoping to get help in Poland and expects to come back better than ever.

In early September, the Complainant rings DC directly in the workplace. She explains that she continues to be unwell and is going to need to stay on in Poland for further investigation or diagnosis. The Complainant says that the Respondent Manager was abrupt with her and basically thanked her for all her hard work and hung up on her. The Manager does not accept that he did this and that he had understood that the Complainant would be sending through medical certificates and would be staying out of the workplace until such time as her health would allow. He did accept in evidence that he was busy at the time and may have been abrupt but he insists that he understood that medical certs would be forthcoming.

On the 9th of September the Complainant wrote a very comprehensive email, setting out her position for the foreseeable future. I asked, and the Complainant confirmed, that a friend of hers had helped with the email. In the email the Complainant confirms that she is having ongoing difficulties with ill health - giving rise to constant pain and that she has struggled with work. The Complainant acknowledges that the prognosis is not good and that:

“It’s my doctor’s opinion I need to resolve this issue before returning to work…”

The Complainant sent a medical note requesting two weeks leave from that date due to the health issues. This would have brought the Complainant up to the 23rd of September. At some point the Complainant submitted another medical report excusing her from work up until the 6th of October. The Respondent witness explained that he simply forwarded the medical reports (which were in Polish) on to the HR department. He did not confirm receipt of them and did not see the need to as they are self-explanatory in terms of the fact that such notes render the employee unfit to be in the workplace. There is no sick policy in operation. The fact that there was no translation provided I do not see as a particularly big issue where the Complainant has very honestly set out what her medical condition is and the only information needed to be gleaned from the Doctor’s note are the dates of absence.

A number of things upset the Complainant at this time. Firstly, she was put off the workplace whatsapp group without explanation. She further understood from her work colleagues that her name had been taken off the rosters that were being drawn up in her absence. This all upset her. The Respondent indicated that this would be normal enough when an employee is out on sick leave where no end is necessarily in sight and in this regard I would have to accept that the Respondent witness had no idea when the Complainant was going to be returning to work as her Doctor’s advice was at best cautious and her own communication was open-ended.

Therefore, I do not find it surprising that the Respondent Manager did not know that the Complainant would come in to talk to him on the 6th of October. It was perfectly in order for the complainant to do so but it seems conceivable that the Respondent Manger was simply not expecting it. I would also accept that when she made the decision to go in and see the Respondent Manger, the Complainant did not believe that she was fired and would not be allowed to re-engage with the workplace.

It is difficult to know exactly what happened in the course of the ensuing conversation between them. Both parties agree that the Complainant requested that she be allowed to come back to work on a Part-time basis and that this option was refused by the Manger as not one he generally extended to the staff in this busy city centre establishment. It seems that they both agree that the Complainant says that she would therefore come back full-time as per the arrangement that had existed for 4 years.

At this point the parties give different accounts of what was said. The Complainant says that she was told by the Respondent that the workplace was “better off without her” and that he “was sick of her complaining about her illness”. The Respondent witness rejects he said any such thing but told her that she would have to be certified as fit to return to work on a full time basis in circumstances where she had just said to him that she could only work on a part time basis by reason of her health. The Respondent went on to say that the Complainant was told to attend the company Doctor who was known to her from previous reference. The Complainant denies any such words were uttered.

To get to the truth of what happened I must consider what happened in the aftermath. In these circumstances I note that nothing happened until the Complainant made a representation to the employer, through her Solicitor, noting that she had been dismissed summarily. This happened by letter dated the 13th of October 2017 – a week after the conversation. The letter also indicates that there is a series of other complaints which the Complainant wishes to raise against her Employer and I accept that none of these were made known to the Respondent in the course of the employment.

The CFO of the Respondent company phoned the complainant’s Solicitor some three days later concerning the Solicitor’s letter. The conversation between the parties seemed to hinge on it being acceptable that the Complainant return to the workplace in the event that a back to work medical certificate be provided. On balance, I accept that this was the first time that the Complainant’s Solicitor was told that such a back to work certificate would be required. I therefore on balance accept that the Complainant was unaware that she had been invited (at her meeting with the Manager DC) to confirm her ability to return to work with such a medical certificate.

It is clear that the Solicitor’s raising of the issues over and above the singular question of a possible Unfair Dismissal has served to muddy the waters here. Mr B the CFO in his written letter of the 2nd of November takes issue with the fact that if the Complainant has Grievances then she should have triggered a Grievance procedure in the usual way. This I would have to accept is generally true. However, I cannot accept that the question of a Summary Dismissal could ever be part of some internal Grievance procedure. By it’s very nature a Summary Dismissal happens then and there and is justified if the evidence justifies it. An employee dismissed summarily is not generally afforded the right to seek to have the dismissal reviewed through a Workplace Grievance procedure after the event. If a Summary Dismissal has happened to an employee then there is no come back or recourse (other than through the state mechanism provided by the WRC).

In general terms, therefore, I accept that the Industrial Relations dispute (relating to bullying in the workpalce) and the various Equality complaints were never on notice to the Employer during the course of the employment and the requisite steps which should be taken to mount such claims (i.e. initiating triggering workplace Grievance procedures and/or putting the Employer on Notice of discrimination etc) were never taken while the Employee was in the employment. IN the course of the hearing no evidence was adduced of any discrimination and no Prima facie case was made out.

I would also accept that the complaints of breaches of certain other legislation ( e.g. Minimum Notice & Terms of Employment Act, 1973 and the Organisation of Working Time Act, 1997) which have been brought before the WRC were not necessarily known to the Respondent before a Solicitor’s letter issued, but these complaints do not need to be on notice as the fact of breach is what is at issue. It should also be noted, that complaints are only brought in respect of breaches which occurred within the six month period immediately prior to the date the complaint is made. The Workplace Relations Complaint Form is dated the 23rd of February 2018 which allows for me to consider the period from August 2017 to February 2018. I think the evidence is that the Complainant was not in the workplace during this period of time.

Before concluding I would therefore like to clarify that I do not accept the content of the Complainant’s allegations of bullying and harassment against Mr. DC. There is nothing in the past interaction between the parties and the language of the texts and emails that I have seen to suggest anything other than a perfectly satisfactory working relationship. I reject the picture painted of an unhappy workforce terrified of the temper and bullying nature of an overbearing Manger. These claims are unsubstantiated and paint an unfair representation of the Respondent Manager.

However, even having regard to the foregoing, I am satisfied that on balance the Complainant came away from her meeting with her Manager DC believing that her employment had been summarily terminated. I am satisfied that the employer did not particularly want to make provision for the Complainant’s return to work on a part-time basis and anticipated that the complainant’s ill health was likely to give rise to difficulty in the workplace. DC therefore did terminate the employment in a summary manner. It seems to me that this was done in the heat of the moment.

I note that the Complainant did look for and find alternative employment at a commensurate level of pay and that her losses are therefore finite.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00017633-00 – I accept that the Complainant was summarily dismissed and I award her €3,500.00 compensation.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00017633-002 - this complaint does not succeed as there is no breach of the Act for the six-month period immediately prior to the Workplace Relations Complaint Form.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00017633-003 - I make no recommendation under this Act.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00017633-004 – The Complainant is entitled to her Notice payment in lieu of working her Notice period and this claim is well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00017633-005 - The Complainant made out no Prima facie case of discrimination and her claim under this Act fails.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00017633-006 - this complaint does not succeed as there is no breach of the Act for the six-month period immediately prior to the Workplace Relations Complaint Form.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00017633-007 – This complaint is well founded and I award the Complainant €100.00.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – CA-00017633-008 - this complaint does not succeed as there is no breach of the said Act for the six month period immediately prior to the date on the Workplace Relations Complaint Form.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00017633-009 – This complaint does not succeed .