Complainant

Respondent

Anonymised Parties

A Restaurant Manager

A Restaurant

Representatives

Ms. Louise Merrigan B.L., instructed by Kerin, Hickman & O'Donnell Solicitors

Peninsula

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00024217-001

18/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00024217-002

18/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00024217-003

18/12/2018

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

CA-00024217-004

18/12/2018

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

CA-00024217-005

18/12/2018

The following is a summary of the Complainant’s case.

The Complainant said that she commenced employment with the Respondent as a waitress on 1 May 2015. The Complainant said that she started a personal relationship with Mr. A, the owner of the Respondent from September 2016 and that they were living together some time thereafter.

The Complainant said that as of November 2017 she was heavily involved in the management of the restaurant and in particular the project management of the renovation work that was taking place.

The Complainant said that post renovation of the restaurant she was paid €13 per hour plus another €2 or so in tips. The Complainant said that while the Respondent was closed for renovations, she was paid €250 per week for all the work that she did as project manager, including attending meetings, liaising with the designer and the builders. She said Mr. A had final say on all matters but she was heavily involved throughout.

The Complainant said that she was responsible for meeting and interviewing staff and all the organising and planning was completed before the restaurant reopened in March 2018. She said that at that time she was working excessive hours some 40 to 50 hours per week, and she was really stressed.

The Complainant said that she never got a contract of employment or a statement of the terms and conditions of her employment while she was working there.

The Complainant said that she was extremely busy and seldom got breaks on certain days due to the nature of the business.

The Complainant said that she had conversations with Mr. A regarding their work-life balance. This included that they possibly needed to work away from each other because of the implications it was having on them and their family.

The Complainant said that on 8 August 2018 she was on the road on a long journey when her car broke down. She said that she contacted her partner and he was not happy with her and they had a heated exchange on the phone, to which she said in the heat of the moment “why don’t you P45 me”.

The Complainant said that when she returned home to the house where they lived two days later, they attempted to get their relationship back on track. She said that they went on a holiday on 20 August for a week abroad and they continued to live together. The Complainant said that they did not succeed in sorting out their differences and their relationship finally broke down fully around 16 September 2019.

The Complainant said that she really did not know what to do. She said that there were no other options for work in the area, however she said that she wanted to remain working there. She said that Mr. A and she discussed her returning to work during that time. However, she said that he told her that it was too late, that his accountant had made the necessary arrangements about the termination of her employment in the restaurant. The Complainant maintains that she did not expect to be fired, that she wanted to stay on in the job and she would have continued to work there if she was not removed from her job by Mr. A.

The Complainant said that she moved out of the house after their relationship failed and never worked in the Respondent’s restaurant again. The Complainant said that she struggled to find work and could only manage limited hours here and there for a few months. She is now in a full-time carer position.

The following is a summary of the Respondent’s case.

The Respondent said that this claim is frivolous and vexatious in nature. There is no reality to the allegations made in this claim.

The Complainant was in a relationship with, Mr A, for a period of approximately two years and they lived together (cohabited) for the last nine months of that relationship. The Complainant, in her letter of resignation cited the reason for her departure as “personal.” The Respondent said that they had been discussing the work life balance for some time. They had shared the minding of their children and working together, and the Complainant was not happy with the arrangement of working in the restaurant. After the incident of 8 August, it was clear to Mr. A that the Complainant had finally made her decision about working with it and had tendered her resignation, which had been processed while they still remained in a relationship. Mr. A said that they went off on holiday and as far as he was concerned the working together relationship was over, and she had not looked for her job back.

The Respondent said that in respect of the claims under the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act, 1997, the Respondent asserts that it is of particular relevance and significance that the Complainant was a manager in the company, and thus, was in a managerial position with respect to other staff. It said that in fact, the Complainant in her role in the business, issued the standard terms and conditions to new staff members and did up the rosters for the other staff, herself.

The Respondent said it was far from her being in a vulnerable position, unable to take breaks or being required to over-work by her employer, or unaware of the terms and conditions of her employment, she was, in fact, issuing the standard terms and conditions to all new staff members and determining her own hours and breaks and doing up the rosters determining the hours and breaks of the staff working under her, all the while in a personal relationship with Mr. A.

The Respondent said that its case is similar to the situation in Gina’s Italian Ice-Cream Limited -v- Gacek (DWT1627) wherein the Labour Court determined that: “The Respondent contended to the court that the appellant was the manager of the store and as such was responsible for ensuring compliance with the Act. The court finds that the responsibility for ensuring compliance with the act rests with the employer. The responsibility extends to the appellant notwithstanding that she was a manager employed by the respondent.” 

The Respondent asserts that the responsibility for compliance with the relevant Acts extended to the Complainant, in her capacity as a manger, in the Respondent business, which happened to be her partners business.

The Respondent asserts that the Complainant can therefore not establish any of the breaches which she alleges. Furthermore, the Respondent asserts that the Complainant cannot establish any prejudice to her, as a result of said putative breaches, which are denied.

The Respondent said that in Philmic Ltd. t/a Premier Linen Services v. Petraitis (TED1616) it was held that: “The Court finds that the Respondent was in breach of the Act at Section 3(g) and 3(ga). No submission has been made to the Court to the effect that the Appellant suffered any detriment as a result of these breached. The Court measures the compensation amount which is just and equitable having regard of all the circumstances of this case as being nil.” Philmic was appealed to the High Court where it was held “the compensation to be awarded to the Appellant was a matter for the Labour Court.”

The Respondent said it was a matter for the Complainant to establish what, if any, losses were sustained by her.

The Respondent asserts that it was not in breach, as the duty extended to (and fell to) the Complainant herself, in the circumstances in this instant case, that she was not and could not have been prejudiced and that she suffered no losses, as a result.

In respect of the claim where the Complainant is alleging that she was constructively dismissed by the Respondent, it said that that the Complainant was not dismissed constructively or otherwise. In fact, Mr. A’s evidence was that the Complainant suggested that she stop working in the business, to which he acquiesced. Their personal relationship continued for some time after that and they continued to live together. They went on a holiday together after she had stopped working for the restaurant. The relationship has since broken down and she subsequently has taken her case for constructive dismissal.

The Respondent states that in the case in the Supreme Court decision in Berber -v- Dunnes Stores Ltd [2009] IESC 10 the Court determined that the constructive dismissal test is an objective one and that “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

It said that the words “without proper cause” are interesting because they indicate that if an employer had proper cause (legitimate reason to discipline someone) but went about it poorly, that that does not constitute constructive dismissal.

The Respondent referred to the decision of An Employee v Employer (UD720/2006) where the Tribunal held that “the claimant did not exhaust the grievance procedure made available to him and this proves fatal to the claimant’s case.”

In the decision of Donegan v Co. Limerick VEC (UD828/2011) the Tribunal held that “the respondent’s conduct was not so unfair or damaging to the claimant’s rights and entitlements that she had no option but to resign from her position.”

The Respondent refers to the Employment Appeals Tribunal decisions of Conway v Ulster Bank Ltd. (UD 474/1981) (taken from Mary Redmond, Dismissal Law in Ireland, 2nd Edition), where the Tribunal found that the Complainant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints” and in Higgins v Donnolly Mirrors Ltd. (UD 104/1979) (taken from Mary Redmond, Dismissal Law in Ireland, 2nd Edition) where the Complainant’s claim for constructive dismissal was rejected as she had failed to discharge the heavy onus of proof she bore.

The Respondent refers to the case of Debbie Kearns v Silverfern Properties Ltd. [2013] 2 JIEC 0701 the EAT held that “In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

It is submitted that the fact the Complainant resigned without ever engaging properly in the grievance process also proves fatal to her case.

CA-00024217-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

Section 7 of the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, reads:

“(1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5 or 6, if the employer concerned has—

(a) complied with a direction under section 6Agiven in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015, or

(b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

(2) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ‘remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act.

The Complainant claims that she was never presented with a contract of employment when she worked with the Respondent. I note the undisputed evidence here is that she started working as a waitress and having started a relationship with the owner of the business her role changed to manager and project manager while the renovations were ongoing. I note that when the restaurant was in the process of reopening, she was interviewing staff and making business decisions on behalf of the Respondent, in what appears to be a capacity far beyond that of employee and more akin to a partner/owner in the business.

Notwithstanding her position within the Respondent, there is no evidence to suggest that she was a partner or indeed a co-owner and what is clear is that she was an employee with advanced responsibilities and say in the business. It is clear that there is a failure by the Respondent to comply with Section 7 of the Acts on taking up her role and the changing of that role, albeit, I am fully satisfied that she knew her terms and conditions. I would say that she somewhat determined them herself. I note that there is one person who is above her in the hierarchy at the time and that is her partner. I find it somewhat difficult to fathom that should she have required a contract of employment in the circumstances that she should and could have managed that construction with her partner, particularity since it is her own evidence that she was particularly managing the renovations and the opening of the restaurant at that time. Accordingly, I am satisfied that there was a failure by the Respondent to comply with Section 7 of the Acts. However, I am of the view that in this case that is merely of a minor technical contravention in this instance. I hold the view that there is no real practical impact of this breach on the Complainant.

I note the decision in Patrick Hall v Irish Water Determination TED161, where the Labour Court gave extensive consideration to the approach which should properly be adopted in cases where some technical contravention of the Act occurred which had no practical consequences for the Complainant. Section 7(1)(d) of the Act provides, in effect, that an Adjudication Officer may order an employer to pay a Complainant compensation of such amount (if any) as is just and equitable having regard to all the circumstances. The purpose of compensation is to provide redress to an aggrieved party for some loss, damage, inconvenience or expense incurred by that party in consequence of some wrongful act or omission by another. On the facts of the instant case, I am satisfied that the Complainant herein suffered no adverse consequences of any materiality in consequences of those contraventions upon which her claim to compensation is grounded. I am obligated to consider if such an award is just and equitable having regard to all the circumstances. In its decision in Irish Water the Labour Court held that where mere technical breaches of Section 3 of the 1994 Act occur, “the dictates of fairness or equity could not justify an award of compensation”. I follow that reasoning in my approach to this claim.

Accordingly, I deem that the amount of compensation which is just and equitable in all the circumstances of this complaint is €250.

CA-00024217-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

It appears to me there are a number of aspects that I must consider in coming to a decision on this case. Firstly, I must determine whether there was a dismissal or not, and secondly, should I find that there was a dismissal, was this unfair in the context of Section 6 the Unfair Dismissals Act 1977.

The fact of the dismissal was very much in dispute between the parties in the present case.

For a claim to be properly brought under Section 8 of the Unfair Dismissals Act 1977, an employee has to have been ‘dismissed’ on a particular date within the meaning of Section 1 of the Act as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) 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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

 Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind   which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…..

(6)  In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

From the evidence adduced, it would appear that there were issues brewing between the Complainant and Mr. A for a period of time. The Complainant’s evidence is that she was stressed and making many of the necessary decisions in the business. I am satisfied that there appears to be a number of discussions regarding the Complainant remaining in the Respondent’s workplace because of the stress that she was under. I understand that there were many discussions on what is best for their relationship going forward and whether the life balance of the Complainant and Mr. A both working and living together was going to work out in the long term.

It is common case that an incident occurred on 8 August 2019, where the end result was that the Complainant said, which she claims in the heat of the moment “why don’t you P45 me”. I accept that the Respondent accepted that there was a termination of the working relationship between the Complainant and the Restaurant. Whereas the Complainant has stated in evidence that she always just expected to return to work. Both the Complainant and Mr. A have different views on the conversation and have had a history of definite discussions about the work life balance at that time. This is a very sensitive situation and would not normally pertain in working relationships where there is no personal relation as was in the within case. However, I am satisfied that I have to treat this like any termination of employment situation and consider the case where something is uttered in the heat of the moment as was suggested by the Complainant accordingly.

With this in mind I note a helpful decision from the UK Court of Appeal in the case of Willoughby -v- CF Capital Plc [2011] IRLR 985 at paragraph 27 that: “the 'special circumstances' exception to which I have referred is one that finds its expression and application in several reported authorities. They are cases in which either the employee has given an oral notice of resignation or (less commonly) in which the employer has given an oral notice of dismissal. The words of the notice so given may, on the face of it, be clear and unambiguous and may take effect according to their apparent terms. Indeed, the general rule is that they will do so. The authorities recognise, however, an exception to that general rule: namely, that the circumstances in which the notice is purportedly given are sufficiently special that it will or may not take such effect. For example, the words of notice may be the outcome of an acrimonious exchange between employer and employee and may be uttered in the heat of the moment such that there may be a real question as to whether they were really intended to mean what they appeared to say. In such circumstances it will or may be appropriate for the recipient of such a notice to take time before accepting it in order to ascertain whether the notice was in fact intended to terminate the employment”.

It was held at paragraph 37 that: “It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be”.

It was held at paragraph 38 that: “In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words”.

While I note that this case is not binding in this jurisdiction, it is persuasive on the law applicable to cases such as this. It is clear that special circumstances in which a notice of resignation can be revoked includes situations where the words indicating the resignation have been uttered in the heat of the moment. This is the case that was made out by the Complainant. I note the Respondent said that the discussion about termination of the employment relationship was ongoing for quite a while and this must be taken into consideration.

Taking this one step further, I do believe that it is necessary to establish if the special circumstances exception can be invoked in the circumstances of the instant case, it must be established that the Complainant had used the words in question in the heat of the moment and that she did not intend to resign in the first instance and that all reasonable efforts were made to withdraw the notice of resignation within a reasonable timeframe following the confrontation on 8 August 2019.

The Complainant said that she did make that step, whereas the Respondent said she did not. I note that the process for winding up the employment relations was put in train at that time. It was not stopped. I note they continued in there living arrangement and went on holiday together for a week and the Complainant did not return to the restaurant again. I note they continued their personal relationship into September and finally parted ways. I have not been presented with substantial evidence that the Complainant was fighting for her job back in that time. I feel that whatever transpired between the Complainant and Mr. A on the 10 August 2019 that there was an acceptance of the situation or acquiescent by the Complainant that she was not returning to work in the restaurant at least for a period of time.

I note in the decision of Millett v Shinkwin DEE 4/2004 [2004] E.L.R. 319, the Labour Court stated the “general rule” as follows:

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by a subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

In that regard, I also note in “Redmond on Dismissal Law” [22.22] p. 495 states: “Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned.”

I find that, on balance of the probabilities, the facts in this case suggest that the Complainant resigned her position with the Respondent and was not unfairly dismissed in the circumstances.

CA-00024217-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant claims that while she worked with the Respondent she was over worked and was just not in a position to take breaks. She claims that she was working up to 12 hours a day without breaks at busy times.

I note that the original contract of employment signed by the Complainant for and on behalf of the Employer, the Respondent, indicates that should an employee fail to receive adequate breaks or rest periods, they should contact management in writing.

I am satisfied that the Complainant was responsible as manager to enforce the careful management of the Respondent’s staff. Likewise, I note that from the evidence submitted that she was in a senior position within the Respondent with regard to management of resources and setting of rosters. It is somewhat difficult to determine that she subsequently now finds that her own decisions on rostering herself as an employee and her work practices were not consistent with the legislation and because of those decisions, which were contrary to the Organisation of Working Time Act, 1997 that she should be compensated for the same. I heard evidence and am satisfied that she was in effect responsible for the hiring of staff once the restaurant reopened after the renovations. It would appear somewhat peculiar that she placed herself in such a particular predicament in not having sufficient staff to support the Respondent’s requirements.

Notwithstanding the personal relationship between the Complainant and owner of the Respondent, I have to treat this case as a employee/employer relationship. With this in mind I have not been put on any particular notice of her notifying in writing her superior, which was the owner and her partner, that she as an employee failed to receive adequate breaks or rest periods.

Therefore, on the balance of probabilities I am satisfied that the case is not well founded.

CA-00024217-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant claims that while she worked with the Respondent she was over worked and had to regularly work excessive hours. She claims that this was a regular occurrence at busy times.

The Respondent claims that was not the case. There were occasions where it was very busy, but the Complainant was involved in setting the roster and it was only on very few occasions.

The records submitted show there are limited periods where the Complainant was rostered and paid for excessive hours.

I note that in relation to Weekly Working Hours, Section 15 of the Organisation of Working Time Act 1997 stipulates the following,

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or…..

The evidence presented from the parties is in dispute. I have taken the direct oral evidence from both parties and I am satisfied that documentary evidence provided would tend to corroborate the Respondent’s case. I note that there were instances of excessive hours worked in July on a number occasions which were noted and were reflected in the Complainant’s payslip. However, more often than not in the months leading up to July, and in the ‘4-month period’ there were regular hours well below the threshold set out in the legislation.

Accordingly, I am satisfied that the Respondent did not permit the Complainant to work more than the permitted hours for more than the minimum period stipulated in the Act and therefore this complaint is not well founded.

CA-00024217-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I find that the complaint is well founded, and I deem that the Respondent shall pay €250 [two hundred and fifty euro] to the Complainant in compensation.

CA-00024217-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

This complaint is not well founded.

CA-00024217-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

This complaint is not well founded.

CA-00024217-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

This complaint is not well founded.

Terms of Employment (Information) Act - Unfair Dismissals Act, 1977 - Organisation of Working Time Act, 1997 -