Complainant

Respondent

Anonymised Parties

Team Leader

Restaurant

Representatives

 Unite the Union

Moorepay Ltd

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-00029520-001

08/07/2019

The complainant worked for the respondent as a Team Leader from 9 July 2018 until she was dismissed on 22 March and left the respondent’s employment one month later. She has less than one year’s service and submits the dismissal took place because of her trade union membership.

The General Manager gave evidence that on 1 March 2019 the complainant took a credit card payment from a customer, in her role as a head waitress. At the reception area, on her way out of the restaurant the customer made a complaint about the incident. The General Manager investigated the incident by speaking to the reception team. He then had a meeting with the complainant; an Assistant General Manager and the Bar Manager were present He concluded that a disciplinary matter took place, because when she was taking the credit card payment she was did not ask the customer for a payment and asked for a cash tip. This was in contravention of the respondent’s procedures, and the customer made a complaint about the interaction.

After talking to the respondent’s HR advisor he suspended the complainant later that day and passed the matter on. A disciplinary meeting was held by Ms B. Following this meeting the complainant was dismissed for failing to ask for a credit card gratuity, for failing to follow the respondent’s procedures, for bringing the restaurant into disrepute and for embarrassing a customer. An unsuccessful appeal took place.

The General Manager confirmed that in his role in the restaurant he had not heard of the Unite trade union before the incident.

Following an interview on 22 June 2018 the complainant was offered a position as Head Waitress at €12.00 per hour plus 80% of all tips received. Her contract confirmed her pay at €12 per hour and is silent in relation to tips. She started working for the respondent on 9 July 2018, when the restaurant opened. A week later the General Manager spoke to all staff and said the split on credit card tips was changing and waiting staff would receive 40%. They would continue to receive 80% of cash tips. Tips would be shown as ‘bonus’ on wage slips.

The complainant’s first pay slip showed her basic pay as €9.55, the minimum wage at the time, and the remaining €2.45 was included in the category of TRONC. In October the complainant and a number of others of the waiting staff submitted a letter of complaint to management about the reduction in tips they were receiving. Following this complaint and discussion on a WhatsApp group the Head Waiter told staff the split would be increase to 50%. In December 2018 the matter was reported on in a review of the restaurant in The Irish Times.

In January 2019 the complainant and a colleague spoke to a TD and they were introduced to Unite the Union. Unite raised issues with the restaurant group’s Head of HR and a meeting took place at which the Head of HR was told of the complaints about the level of tips being passed on waiting staff and that there was a camera in a changing room. Unite offered a relationship with the respondent to address outstanding issues. The head of HR went immediately to the restaurant and resolved the camera issue satisfactorily.

There was no further engagement until Unite wrote to the Head of HR seeking confirmation of a meeting and an arrangement to address issues by 1 March 2019. At the time of writing this letter it is clear the respondent knew the complainant and the colleague were members of the union.

Then, on 1 March 2019 the complainant submits an incident was created because of her union membership. Initially the complainant and the colleague who had both made the initial contact with Unite were not working in the same floor area but the colleague was moved to the same area as the complainant. Soon afterwards the colleague, who could not take a credit card payment, brought a customer to the complainant to take the payment. Because of the delay the customer was in a rush and angry, so the complainant did not ask her for a tip, in order to avoid making a bad situation worse. Soon afterwards the complainant and the colleague were called separately to the General Manager’s office and they were handed pre-written signed letters of suspension alleging wrongdoing. They were instructed not to speak to each other or anybody else, and were escorted from the building. This meeting was covertly recorded by the respondent. Following her suspension an investigation took place and the complainant was dismissed, for not asking for a tip.

At 5pm that the same day, 1 March, the Head of HR responded to Unite’s request for a meeting and said there would be no engagement between them. The complainant submits the events were contrived to remove Unite representatives from the workplace while shutting down any prospect of collectively resolving outstanding issues.

The complainant also submitted that her dismissal was related to protected disclosures made about the tips issue.  

Section 2(1)(a) of the Unfair Dismissals Act, states the Act shall not apply to:

“an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act”

The complainant does not have the service and alleges that her dismissal occurred as a result of her trade union activity and is relying on section 6 (2) which states:

“the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)       The employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer to so engage,”

Section 14 of the 1993 amendment to the Unfair Dismissals Act removes the requirement for a person claiming that their dismissal arose from trade union activity to have completed one year of service with their employer. I refer to the decision in Michael Reid v John Oxx, [1986] ILT 4, 207, where it states that, “…where a person is dismissed for trade union activity the necessary qualification of a year’s employment so as to qualify for redress under the Act is dispensed with but at the same time the presumptions under subsection (1) and (6) of the section putting the onus of proof on the employer shall not then apply.”

It follows therefore that the legal burden is on the Complainant to show that her dismissal was wholly or mainly on the ground of trade union membership/ activity.

The respondent’s evidence is that the complainant was dismissed solely as a result of the incident on 1 March 2019, nothing else was referred to in the documentation I was provided with.

The complainant confirmed she did not ask the customer for a tip and gave evidence of the reason why she did not follow what she knew was the correct procedure, on this occasion. The respondent did not give evidence the complainant had committed this infraction before, or had committed any other disciplinary matter before. Therefore, she was dismissed solely for this incident. At the hearing the General Manager added that she had asked for a cash tip, instead of asking for a credit card tip. However, when asked the respondent agreed this had not been put to the complainant during the disciplinary process. The General Manager sought advice from the respondent’s HR advisors when he spoke to the complainant about the incident and said he had been instructed to suspend her.

Given the lack of stated previous issues and the evidence I was given in relation to the incident on 1 March I consider the dismissal of the complainant to be a disproportionate sanction. However, I am not investigating whether the dismissal was unfair in and of itself. I have to consider if the dismissal resulted “wholly or mainly from” the complainant’s union membership or activities. I have to consider if this was the reason.

The General Manager said he had not heard of Unite, in relation to the restaurant, before the incident on 1 March 2019. This is despite the complainant’s representative stating he had a meeting with the respondent’s Head of HR in February 2019, immediately following which she went to the restaurant and made changes which resolved the issue in relation to the camera. I cannot accept that this took place without the General Manager’s knowledge and without him being told it had been raised in a meeting with Unite. He knew at that stage the Unite had members who worked in the restaurant and, on the balance of the evidence, I conclude he was aware the complainant was a union member.

The issue in relation to the value of tips passed to waiting staff had been ongoing since shortly after the restaurant opened in July 2018 and the complainant was involved in this dispute with the restaurant management. It seems that her role in the dispute and her reluctance to follow the respondent’s instructions to the letter led to the disciplinary action.

I conclude that the dispute over tips was the most important factor in the attrition between the complainant and the respondent. Her union membership was a factor but by no means the most important. Therefore, I find that the complainant’s dismissal did not result “wholly or mainly from ………the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer to so engage”.

Protected Disclosure

The claim in relation to a protected disclosure was not made in the original claim referral. The complainant’s representative added it to the claim for the first time in a letter dated 11 February 2020.

Section 8 (2) on the Unfair Dismissals Acts states: “A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,”

In this case the complainant left the respondent’s employment on 22 April 2019 and the claim in respect of a protected disclosure was not made until 11 February 2020; over nine months later. This is outside the six months’ time limit and no “reasonable cause” was provided for the delay. I therefore conclude as this part of the claim was made outside the time limits I have no jurisdiction to investigate it and I find the claim is not well founded.

For the reasons given above I find both aspects of the claim made under the Unfair Dismissals Act to be not well founded.

Less than 12 months service – union membership – not well founded