Complainant

Respondent

Anonymised Parties

Waitress

Restaurant

Representatives

Brendan Ogle of Unite The Union

Martyn West of 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-00029521-001

08/07/2019

The complainant worked for the respondent as a Waitress from 14 June 2018 until she was dismissed on 25 April 2019 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 and a colleague were involved in an incident with a customer, who complained, as she was leaving the restaurant, that she had been told credit card tips were kept by the restaurant and was asked for a cash tip. He investigated the incident by speaking to staff on reception. He met separately with the complainant and her colleague and, in accordance with instructions from the respondent’s HR advisor, suspended both of them. Then he passed the matter on for a disciplinary investigation. Following the disciplinary meeting the complainant was given a final written warning.

The General Manager gave evidence the complainant was involved in further incidents which he described as “atrocious”. She made comments to the effect she wanted to bring the company down and he described her repeated efforts to get others to join a union amounted to harassment. He submits a number of complaints were made to him, so he met with a number of staff and managers. On 8 April he met the complainant, together with an Assistant General Manager, to put to her the issues that had arisen that day. Because of the nature of the complaints, he suspended the complainant and passed the matter on for a disciplinary investigation.

The person appointed as disciplinary officer gave evidence at the hearing. The invitation to the disciplinary hearing was limited to events on 8 April 2019. At the disciplinary meeting the complainant and her representative gave him a letter which stated that as she was not being allowed to face her accusers she would not be participating in the disciplinary meeting. He took advice on this issue and decided it was not necessary for the witnesses to be present at the hearing. If the complainant had engaged with him at the disciplinary hearing, he would have taken her comments about the witness statement into account. He made his decision on the basis of a report from the Assistant General Manager of the meeting with complainant on 8 April and two written witness statements of events that took place on 8 April 2019 and dismissed the complainant because “it is my reasonable belief that you are unable to perform the role to the standard that is required by the Company”. The report of the meeting and the two statements made no mention of trade union membership or activity. The dismissal letter also confirmed “This disciplinary action is not related to your trade union membership but as direct result of your behaviour”

Following an interview on 13 June 2018 the complainant was offered a position as Waitress at €10.55 per hour plus 80% of all tips received. 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 €1.00 was included in a category of TRONC. This showed that the customer’s tips were being used to make up her contractual pay. In October the complainant and a number of others of the waiting staff submitted a letter of complaint about the amount of tips they were receiving to management. Following this complaint and discussion on a WhatsApp group the Head Waiter told staff the split would be increase to 50%. However, the system put in place by the respondent made it impossible for the complainant and her colleagues to work out what portion of the gratuities left by customers was given to them.

In December 2018 the issue over the tips was reported in an Irish Times review of the restaurant, which also praised the complainant for the service she provided.

In January 2019 the complainant and a colleague spoke to a TD, who introduced them 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 about the staff’s concerns over tips 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 complainant was moved to the same area as her colleague. Soon afterwards the complainant told a customer she could not take her credit card payment and brought the customer to the colleague, who was a senior waitress, to take the payment. She left the customer with her colleague. 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, namely refusing to allow a guest to make a credit card gratuity payment and requesting a cash tip. The complainant was instructed not to speak to her colleague or anybody else, and she was escorted from the building. This meeting was covertly recorded by the respondent. A disciplinary hearing took place and the complainant was issued with a final written warning which was upheld on appeal.

At 5pm that 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 target and remove Unite representatives from the workplace while shutting down any prospect of collectively resolving outstanding issues.

On 8 April, within two weeks of returning to work, the complainant was again suspended after being told by the General Manager to ‘watch herself and pick which side you are on’ that morning. The complainant had been encouraging other members of staff to join the union and talking with them about the unfairness of how customer’s tips were used. She also told management she thought it unfair that all tables, regardless of size, would be subject to a service charge. She was suspended, which was designed to bring about her removal from the restaurant. At the disciplinary meeting on 18 April the respondent denied the complainant the right to confront and question witnesses. The complainant was dismissed ‘on the grounds of unsuitability’. The complainant submits the ‘unsuitability’ was a result of trade union membership and activity.

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 Act sets out exceptions to this service requirement and states: “Section 2 (1) … shall not apply to a person … who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of section 6.” 

The complainant does not have the service 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 given a final written warning solely as a result of the incident on 1 March 2019, when she was accused of asking a customer for a cash tip. Given the lack of stated previous issues and the evidence I was given in relation to the incident on 1 March the issuing of a final written warning to the complainant appears to be a disproportionate sanction.

Two weeks after her return from suspension the complainant met the General Manager again on 8 April 2019 about events earlier in the day. She was suspended again and subsequently invited to a disciplinary hearing which took place on 18 April. She was dismissed on the basis of the report of the meeting on 8 April and two written statements of events earlier that day. In not interviewing those that provided statements which he relied on to make his statements, and in not allowing the complainant to confront those who wrote the statements he relied on, the person carrying out the disciplinary investigator fell short of the standards expected in such investigations, as set out in S.I. 146/2000; Code of Practice on Grievance and Disciplinary Procedures and the Court of Appeal in Iarnrod Eireann v McKelvey [2018] IECA 346.

However, I am not investigating whether the dismissal was unfair in and of itself. I have to consider if the dismissal was resulted “wholly or mainly from” the complainant’s union membership or activities.

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. The complainant was involved in this dispute and the respondent was aware she was involved and also that she was a member of Unite. From the evidence given by the General Manager he found the complainant’s behaviour on her return from the first suspension to be disruptive and this led to her dismissal. He described her continued efforts to get others to join the union as harassment and this was clearly part of what he considered her disruptive behaviour. However, her refusal to behave as the respondent expected was the major factor and I conclude that this 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 factor in her dismissal. Therefore, I conclude 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”. I therefore find the complaint is not well founded.

Protected Disclosure

The claim in relation 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 was informed of her dismissal on 25 April 2019, and she left the respondent’s employment one month later. The claim in respect of a protected disclosure was not made until 11 February 2020; over eight 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