Complainant

Respondent

Anonymised Parties

Waitress

Catering company

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-00027254-001

25/03/2019

The worker has been employed as a waitress on a casual contract in the respondent’s catering business since 24 August 2014. She works 6 hours per week and earns a gross weekly wage of €81.

The worker seeks the removal of a written warning received on the 20/2/2019 and scheduled to run for 12 months for an incident involving a colleague and herself which was witnessed by a customer.

The incident which prompted the imposition of a written warning occurred at an event on 1 December 2018 at which the respondent assigned the worker to provide waitressing services for one of the respondent’s clients. A customer whose table she was tending submitted a complaint about her to the respondent concerning her behaviour and her statement that credit card tips did not reach staff.

The worker maintains that from day one she was falsely accused as one of the two staff members responsible for the generation of the complaint by the customer. The customer, B, made a complaint to the respondent’s client, C, that a male waiter, D, told him that the respondent’s staff do not receive credit card tips. A dispute broke out between the worker and D as to which tables were hers and which were his. The worker states that it was not about tips but whether she could take orders from the table.

The worker denies that she told B that credit card tips were withheld and points to the hospitality manager’s report which records that B stated that it was a male waiter who told him that credit card tips did not reach staff. When the customer, B, asked the worker to confirm that this was in fact the practice, she declined to engage and asked the hospitality manager to speak with B. The manager confirmed that he took the bill and credit card machine to the customer.

The HR director and the general manager conducted an investigative meeting on 9 January 2019 under the auspices of respondent’s disciplinary procedure to consider the charge that she brought the respondent and their client into disrepute by arguing about who should cover which tables and earn tips from those tables within earshot of customers and corroborating false information about withholding of credit card tips from staff.

The worker’s case for the withdrawal of the written warning is based on her contention that the investigation was flawed and biased.

Flawed process.

At the investigation meeting on the 9 January 2019, the HR director cited previous investigations concerning complaints from that particular client- C- which had uncovered no wrongdoing on her part. The respondent HR manager relied upon this information to sanction her but did not share this information prior to the hearing. This demonstrates the lack of impartiality on the part of the investigator

A questionnaire which identified her and the male colleague as the persons involved in the altercation issued to staff present at the event. Staff were interviewed over the phone, so the worker had no way of knowing what was stated by the respondent nor could she rebut it. The responses from staff identify the 2 members of staff- including herself. One respondent to the questionnaire said that she hadn’t witnessed the altercation between the complainant and colleague, D, but heard about it from other staff. One witness, the bar manager, stated that he heard about the incident from another staff member.

There was no signed letter of complaint from the customer. The only alleged statement concerning the incident which she received was from the respondent’s client.

The client facility manager’s second email, dated 21 January 2019, named the worker whereas her original email of 6 December where she brought the customer’s complaint to the attention of the respondent did not.

A comment made during the internal appeal to the effect that customer B recalled that the worker had the same name as his daughter, and this was used to identify her was never shared with her during the investigation.

The worker states that the customer did not state that he was discomforted in his letter but that was attributed to him by the respondent.

The respondent operates a restaurant and catering business.

Staff get 100% of tips given via credit cards. To have suggested otherwise was false and damaging information, circulated by the worker and another colleague.

The respondent investigated a complaint received   from a customer, B, that while attending an event catered for by the respondent on 1 December 2018, the worker advised him that credit card tips were withheld from staff. The customer further observed that she was in dispute with a fellow worker re tables and tips and that that this took place within his hearing. She attended the customer’s table when the manager took over the matter of a credit card tip. The customer also gave a cash tip on being notified that credit card tips (he had already given one) never reach the staff.

The customer’s complaint was upheld at investigation and deemed credible and worthy of pursuit through the disciplinary process.

A disciplinary hearing was held in accordance with the agreed procedure on 11 February 2019 to consider customer B’s complaint, already upheld as credible at the investigative stage. The customer’s complaint was found to be valid and credible. A written warning was issued on the 20 February.

The respondent holds the worker and D, the fellow employee, equally responsible and does not attribute sole responsibility to the worker contrary to what was alleged.

The worker appealed the sanction. The respondent upheld the sanction.

The respondent states that at all times they have applied the disciplinary procedure in a fair manner. They ask the adjudicator to uphold their position which is that the warning was a fair response to the circumstances presenting to the respondent.

The respondent states that it is not the job of the adjudicator to investigate the substantive compliant or to substitute their views for those of the employer. The question to be considered is did the employer act reasonably given the set of facts and circumstances. They refer to the decision of Looney and Co Ltd v Looney, UD 843/1984 which stated that it wasn’t the job of the tribunal to consider the guilt or innocence of the claimant.

“Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

The issuing of a written warning was justifiable given the complainant’s actions, the embarrassment and discomfort caused to the customer and the reputational risks to the respondent company.

I have been asked to recommend that the written warning be removed based on the worker’s contention that the process used to investigate the customer’s complaint was unfair and biased.

The worker did not identify how the respondent in coming to their decision departed from the terms of the disciplinary procedure.

I note that the respondent concluded that the customer’s complaint was credible. The steps and information used to draw this conclusion included the submission of a verbal complaint from a customer to the respondent’s client, the onward referral of that complaint to the respondent, the transmission of that complaint in a report from the respondent hospitality manager to the HR director and the activation of the disciplinary procedure which culminated in a written warning.

The worker identified flaws in the process which she argues render it to be unfair and biased.

No signed statement from customer. The worker did not point to any procedure which requires a customer to put their complaint in writing to the respondent’s client. I cannot find this taints the process.

Investigation flawed by virtue of having made references to previous complaints from the client, C.

The respondent’s evidence at the hearing that the worker had been issued with a previous warning concerning complaints from this client was not disputed at the hearing.

Hearsay evidence. The respondent interviewed 5 employees, one of whom did not witness the event while four attested to the fact that they were present on the 1 December, stated that the argument was played out in front of customers, and one confirmed that the argument concerned tips. The same evidence was submitted by the hospitality manager. A sufficient amount of witnesses witnessed the altercation between the worker and B. Their evidence surfaced in responses to questionnaires, conducted over the telephone, and this is what influenced the decision as opposed to the persons who did not witness the event.

It is correct that there is no statement from the customer stating that he was discomforted by what had happened. But it is not unreasonable to conclude that a customer complaining about a waitress hovering around the table with a notebook while the manager sorted the tip issue was not discomforted.

I find that on the balance of the evidence the worker has not persuaded me that she was not a party to the propagation of the statement that the respondent withheld credit card tips from staff.

The resultant sanction was not based on his discomfiture, nor on the evidence of the interviewee who did not witness the incident, but on what the investigation and disciplinary hearing revealed about the worker’s involvement on the night in question, and the potential reputational damage for the respondent.

The process may not have been perfect, but I do not find that its imperfections were enough to render the process to be biased or unfair.

I recommend that the respondent should ensure that all staff are informed about the tips policy, how they are distributed and the mechanism to be employed when uncertainty arises. I recommend that the customer care training mentioned by the respondent should be offered immediately.

I do not recommend the removal of the written warning.

I recommend that the respondent should ensure that all staff are informed about the tips policy, how they are distributed and the mechanism to be employed when uncertainty arises. I recommend that the customer care training mentioned by the respondent should be offered immediately.

I do not recommend the removal of the written warning.

Written warning.