Complainant

Respondent

Anonymised Parties

A Kitchen Porter

An Hotel

Representatives

 Self

Helen Quinn IBEC

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-00033888-001

20/01/2020

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

CA-00033888-002

20/01/2020

The Complainant wants a resolution of the Investigation into his Complaint made on the 10th of December 2019. The Complainant brings this matter before the WRC under the IR Acts seeking a recommendation.

The Complainant attended in person and gave a fulsome account of the events leading up to referral of the within dispute. The Complainant provided me with a written statement I was provided with some additional medical documentation copied to the other side. I heard the Complainant give a fulsome account of his employment.

The Respondent HR Manager attended and was accompanied by an IBEC representative. A comprehensive submission had previously been submitted and communicated to the Complainant.

The HR Manager gave evidence over and above the submission.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant commenced his employment with the Respondent Hotel in and around September 2019. The Complainant was engaged as a kitchen porter. It seems that initially, the Complainant was happy in his work and he brought considerable experience to his position having previously worked in another Hotel as a KP for about 8 years.

Then in early December the Complainant outlined a series of incidents that left him very uncomfortable working in the kitchen.

In his evidence the Complainant indicated that he would always be happy to help if he had any spare time from doing what he understood were his KP duties. He stated that he would not see the preparation or handling of foodstuffs as part of what might ordinarily be the duties of a kitchen porter. He should be primarily engaged in keeping the area clean, mopping the floors and keeping the dishes and crockery rotated through the dishwasher. Towards the end of November, and into the start of December, the Complainant described a number of times where he was requested by V and H (chefs within the workplace) to perform tasks over and above his work and which left him with less time to perform his own job diligently. He says that he was not being asked in a nice way and was being treated as a general dogsbody.

The Complainant says that V was getting increasingly aggressive with him and that this was making him very uncomfortable and that by the 1st or 2nd of December he was frightened to be in the presence of V who he perceived to be menacing.

The Complainant went to the Duty Manager T who said that he could see that the Complainant was unhappy. T offered to place the Complainant in the upstairs kitchen for the rest of the working day and he further invited the Complainant to submit a formal complaint if he wanted to do that. It is clear that one of the issues that had arisen was the lack of formal notification of what exactly the role of the kitchen porter was to entail. The Complainant had not as yet been provided with the terms of his employment although he was now in the workplace for about ten weeks.

The Complainant stated he was depressed and upset and hi opted to write a letter of formal complaint on the 2nd of December 2019 and this was submitted to TR the HR Manager. The letter of complaint details a number of instances alleged to form the basis of an allegation of bullying against the Complainant. In the meantime, the Complainant attended with his Doctor.

Mr. Reilly, as HR Manager, has overall charge of up to 90 or 95 employees at any given time. On receipt of the complaint he immediately confirmed receipt by way of an email to the Complainant. As the Complainant was rostered to work on the 4th of December the HR Manager thought he would try and talk to him on site that day. The Complainant did not turn in for work nor did he turn in for work on the 6th. The HR Manager communicated with the Complainant on the phone and was advised that the Complainant was out sick and medical certs would be provided as, indeed, they were. The Manager detailed the Employee’s obligations under the absentee policy. Ultimately, the Complainant remained out on certified sick leave until February of 2020 and some weeks later was put on Covid-enforced lay off.

The Complainant did come in to see the HR Manager once in this time and that was on the 10th of December. At that time, he provided the HR Manager with a full statement of the history of his encounter with V and H. The Complainant was anxious that his complaints be investigated and was disinclined to go down the more informal route suggested by the HR Manager who offered to mediate between the parties.

I was provided with the HR Manager’s prepared note of the meeting held on the 10th of December and indeed of the two interviews conducted with H and V (three other interviews with bar staff yielded no observations). There can be no doubt that a tension had arisen over the course of a few days in November and December during which the Complainant questioned the authority of H and V to ask him to prepare foods when this was outside his job description of kitchen porter. This assertion was contradicted by the HR Manager who expects the kitchen to operate as a team. The fact that the Complainant did not have and exact note of his terms and conditions of employment may well have hindered the Complainant’ understanding. It is noted that the Manager gave evidence that the failure to give a Contract of Employment was an oversight and that he personally printed off the Terms and conditions at the meeting on the 10th of December.

The HR Manager noted that the Complainant felt hatred from V and that he believed that V would injure him. The Complainant felt he was being bullied by H and V. In his evidence before me, the Complainant told me that he was so scared of and threatened by V that he had arrived at the workplace with a knife. He later revised this assertion, stating that he had left the knife outside of the premises when entering the Hotel for his meeting with the HR Manager. Carrying a concealed knife in any situation seems an extreme measure and I am concerned at this disclosure.

The Complainant stated that he was seeking Justice. He stated that he had been denied the right to work and feed his dependents. He said he had gone made in himself with worry.

The Respondent HR Manager noted that the Complainant continues to be an employee of the Respondent company though was out on the Covid support scheme. He says that he placed a few calls (pre covid) with the Complainant to see about his return to work. He says that he had taken the decision to hold off on moving the investigation along while the Complainant was out on certified sick leave. He did not believe that the issues could not be resolved.

Having considered the evidence provided I am perfectly satisfied that the Complainant’s complaint under the Industrial Relations Acts is premature. A Complaint was made in December, and the HR Manager immediately launched an appropriate and timely investigation. The furtherance of that process was stalled by reason of the Complainant being absent form work through certified ill-health. I accept the Manager’s evidence that he did not want to make matters worse by applying pressure on the Complainant to return to work or engage in a process from his sick bed. I note that the Complaint herein issued on the 20th of January 2020 and that once this matter came under the remit of the Adjudication services the HR Manager may have felt obliged to wait for that process to be completed. I note that neither the accuser nor the accused were actively pushing the investigation be completed and so the HR Manager just opted to let it rest until the Complainant returned or signalled that he was well enough to discuss.

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

CA-00033888-001

I recommend that the Complainant continue to engage in the Investigative process as soon as he returns to the workplace. I recommend that the Complainant consider engaging in the mediation offered by the HR Manager.

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

CA-00033888-002

I am satisfied that the complaint herein is well founded and I require a sum of €100.00 be paid as compensation.