Complainant

Respondent

Anonymised Parties

A Catering Assistant

A Hospital Catering Department

Representatives

  Mr Rafa Matraszek

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-00029727-001

12/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00029727-003

09/12/2019

On November 5th 2018, the complainant commenced work as a catering assistant in the hospital run by the respondent.  She resigned on May 22nd 2019 and gave notice of her intention to leave on July 22nd.  However, she left on June 13th 2019 and she claims that the reason was because of how she was treated at work.  She also complains that when she finished work, she did not receive her full entitlements to wages and holiday pay.

Because the complainant worked for the respondent for 32 weeks, she has no protection under the Unfair Dismissals Act 1977 and, for this reason, she brings her complaint of unfair dismissal under the Industrial Relations Act 1969.

At the hearing, the complainant said that she is an experienced catering employee, having worked in a hotel for four years and for another catering company in Dublin for several months.  She said that she resigned from her job with the respondent because she never had help to do her work, she was racing all the time to complete her tasks and she found the job very stressful.  The complainant is a Polish national and she said that a lot of the employees in the catering department were from Romania and they spoke Romanian to each other, which she couldn’t understand.  She said that this made things difficult for her, because she felt that she wasn’t involved in how decisions were made regarding the work to be done.

In the submission that she sent to the WRC before the hearing, the complainant said that in April before she resigned, she was at a meeting with the Catering Manager.  At the end of the meeting, she said that she asked if everyone could speak in English and the Catering Manager supported her in this request.

However, in the letter she sent to the Catering Manager on May 27th explaining the reason for her decision to resign, the complainant said:

“I didn’t start in the (respondent’s) hospital to listen all the time Romanian.  I would like to improve my English language but on that time I can’t (sic).”

In her letter, the complainant expressed her concern about Romanian employees taking smoking breaks and about the Romanian supervisor failing to ensure that employees complied with instructions regarding uniforms, eating at work and cleaning schedules.  She said that she got no proper training and that she had to learn how to do the job by asking questions, or she learned from her mistakes.  She said that the staff was divided into two groups, “Romanian – they knows everything” and “rest – they don’t know anything.”

On June 10th 2019, the complainant said that she had a meeting with the Catering Manager about her Romanian colleagues speaking in their own language.  She said that the Manager said that she couldn’t tell them to speak English at work. 

Two days later, on June 12th, the complainant was in the corridor outside the kitchen separating dishes for cleaning.  She said that her supervisor pulled her trolley into the kitchen but she saw no reason why she should follow him “like a dog.”  She said that the supervisor forbade people to go outside to bring trolleys in because he wanted to show her “who is the boss.”  The complainant said that she became very stressed and two other supervisors sent her home and told her to take the following day off.  The complainant said that she was told that she would be paid for the time off.  At the hearing, the complainant said that nobody cared about how upset she was, or about her health and no one asked her if she could drive home safely.

The following day, June 13th, the complainant sent a letter to the HR Business Partner and told her that she could not remain in her job until July 22nd.  She said that the reason she could not remain at work was because the supervisor “decided to show me where I belong.”  She said that the previous week, she spoke to her manager about the need to train the supervisors because instead of helping the staff, “they are only trying to find our mistakes and often do that behind our backs.”  She concluded her letter as follows:

“I have a feeling that I have lost a lot of my mental health in this job and I see this place as a hostile environment where the rules depend on a given supervisor on duty and there is no mutual respect and there is too much pressure and blaming staff for minor things and no support and no team work.”

The respondent’s case is that the complainant was not dismissed, but that she resigned.  In a document sent to the WRC in advance of the hearing, the respondent submitted that issues raised by the complainant during her employment were addressed by the Catering Manager and the HR Business Partner, who made efforts to find workable solutions.

When she received her letter of resignation on May 27th, on June 10th, the Catering Manager had a meeting with the complainant to discuss the issues she raised.  The Catering Manager explained that English is the business language of the workplace.  She said that she also told her that employees would not be compelled to speak English, but that they should do so in front of patients and when they discussed work matters with each other.  The Catering Manager said that other issues were also discussed, such as the trial of a new roster, breaks and other initiatives to support the staff.  The Catering Manager said that she had a meeting on June 11th with the supervisors and she reminded them of the importance of proper communications.

The complainant confirmed that she left her job on June 13th and the following day, she attended a meeting with the HR Business Partner to discuss what happened between her and the supervisor in the kitchen corridor on June 12th.  The complainant attended with a colleague and she raised her concerns about the use of the Romanian language at work, people taking long breaks and communications between colleagues.  The HR Business Partner and the Catering Manager spoke with witnesses to the incident on June 13th and they concluded that the complainant had not been mistreated and that the supervisor had not behaved inappropriately towards her.

On June 26th, the HR Business Partner sent a letter to all the catering staff to tell them that English is the only language to be used to communicate at work, apart from breaktimes.  A copy of this letter was submitted in evidence in advance of the hearing.

On July 7th, the complainant informed the Catering Manager that she intended making a complaint to the WRC, which she did on the same day.  The HR Business Partner contacted the complainant on July 8th to ask her about her complaint, but the complainant said that she had no time to respond.  On July 19th, the HR Business Partner sent the complainant a copy of the outcome of the company’s response to the issues she raised at the meeting on June 14th, the day after she left her job.  A copy of this letter was submitted in advance of the hearing and it shows that an investigation was carried out into the incident that occurred on June 13th in the kitchen corridor concerning a trolley.  The HR Business Partner also addressed the complainant’s concern about the language spoken in the workplace:

“In relation to the language (the Catering Manager) met with all the supervisors to remind them that it is not acceptable for any staff members to speak in any other language other than English while in work.  We also sent a communication to all staff in the catering department to highlight the same on 26th June.  The language, while in work, will be supervised regularly by the Catering Manager.”

In her evidence at the hearing, the complainant said that she found her job with the respondent stressful and difficult, with a lot of pressure to get work done.  It is apparent that some of her Romanian colleagues had a habit of speaking to each other in their own language and she found this made her job even more difficult.  She said that she had a problem communicating with her supervisor and she resented what she considered to be preferential treatment of Romanian catering staff by the Romanian supervisor.

The complainant said that she was aware of the existence of the respondent’s grievance procedure and she knew that it went from a stage where an employee can raise an issue with their supervisor in the first instance, before bringing a problem to the attention of a more senior manager.  She said that she couldn’t raise a grievance with her supervisor.  I note that the Catering Manager is a Polish national and it is apparent to me that she was available to the complainant to discuss her concerns about the problems she was experiencing at work.  I note also that the HR Business Partner was attentive to the complainant’s concerns and was willing to meet her to explore how her difficulties could be resolved.  At the meeting on June 14th 2019, the HR Business Partner said that it was obvious that the complainant would not change her mind about resigning, but she told her that she could come back to work with the respondent any time.  It is my view that the investigation carried out by the HR Business Partner was a reasonable response to the concerns raised by the complainant.  If she had remained in employment, I think that there is every chance that these matters could have been resolved to her satisfaction.

I find therefore, that the complainant’s resignation does not meet the test of reasonableness to show that it was a constructive dismissal.

I recommend that no further action be taken by the respondent in relation to the complainant’s resignation on June 13th 2019.

Deduction of Wages

The complainant said that she was sent home from work on June 12th and that her supervisors told her to remain at home the following day.  She claims that they told her that she would be paid for the day and a half that she would be out of work.  On her final payslip however, it appears that she has been deducted her wages for this day and a half.  On the payslip submitted in the respondent’s papers, this deduction is shown as an employer’s pension contribution.  The complainant said that she never consented to becoming a member of the respondent’s pension scheme.

Holiday Pay

The complainant took two weeks holidays in April 2019 and, when she resigned, she had 10 hours of holidays not taken.  At the hearing, she said that she was confused about her entitlement to holiday pay because, some of her holidays in April were taken as time in lieu of overtime that she worked before she went on holidays.

The complainant’s June 2019 payslip shows that, in her final wages, she received a payment of €120.59 in respect of 10.2 hours of holidays not taken up to the date of her resignation.

Deduction of Wages

At the hearing, the HR Director said that he would investigate the reference to an employer’s pension contribution on the complainant’s final payslip.  He said that, in his opinion, the deduction of €212.40 relates to a deduction of sick pay for the half day on June 12th and the full day on June 13th, when the complainant was not at work.

The HR Director said that the complainant’s last day at work was June 12th, but, in error, the payroll section paid her until the end of the month.  The effect of this is that the complainant was paid for 12 days that she did not work.  The respondent did not make any effort to recoup this money.

The HR Business Partner accepted that the complainant has no access to her online payslips since her resignation and she said that she would arrange for her to be issued with paper copies in the post.

Holiday Pay

The HR Director set out the complainant’s holiday entitlements which are all in order.  The HR Business Partner said that she would send the complainant copies of her holiday request forms so that she could verify the holidays that she took when she was employed by the respondent.

In relation to wages and holiday pay, I find that the complainant received the payments to which she was entitled, and that she received 12 days’ pay to which she was not entitled, up to the date of her resignation on June 13th 2019.

Deduction of Wages

I recommend that the respondent clarify the statement on the complainant’s final payslip which appears to show an employer’s pension contribution of €212.40 and that an explanation of this be sent to her at her home address.  I note that the HR Business Partner will send the complainant a copy of her payslips.

Holiday Pay

I recommend that the respondent send the complainant a copy of her holiday request forms for 2018 and 2019.

Resignation, payment of wages, holiday pay