FULL RECOMMENDATION
PARTIES : TROIA (UK) RESTAURANTS LIMITED, THE IVY DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00022803 CA-00029521-001 BACKGROUND: DETERMINATION: In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Marciniak is referred to as the Complainant and Troika (UK) Restaurants Limited, The Ivy is referred to as the Respondent. Background The Complainant joined the Respondent as a Waiter on the 9thJuly 2018 and was employed by the Respondent until the 25th April 2019 when she was dismissed. The Complainant has less than one years’ service and submits that she was dismissed because of her Trade Union membership and /or activities and or because she had made a protected disclosure. The Respondent denies that the dismissal was in any way related to her Trade Union membership and/or activities or that she made a protected disclosure. The Respondent submits that the protected disclosure complaint was submitted outside of the prescribed time limits and therefore the Court does not have jurisdiction to hear that complaint. The Complainant lodged her unfair dismissal complaint with the WRC on 8thJuly 2019. By letter of 11thFebruary 2020, to the WRC she sought to add a complaint of protected disclosure to the original complaint. The cognisable period for a claim of protected disclosure as provided for by that Act in this case is 12thAugust 2019 to 11thFebruary 2020. The Adjudication Officer held that the Complainant had not established reasonable cause and therefore the complaint was out of time. By agreement with the parties the protected disclosure issue was dealt with as a preliminary issue by the Court. This complaint was run in tandem with case UDD227 as there was an overlap in terms of witness’s evidence and the case law being relied on. This was agreed with the parties at the commencement of the hearing. Preliminary issues Ms Mc Veigh BL for the Complainant submitted that the Complainant accepted that this element of her complaint to the WRC was made outside of the time limits but that there was reasonable cause for the delay and therefore the complaint should be accepted. It was her submission that at the time the Complainant submitted her complaint she was not legally represented although she did accept that the Complainant had Trade Union Representation at the time. Ms Mc Veigh submitted that she was relying on the test set out in the Labour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Mr West on behalf of the Respondent submitted that no reasonable cause for the delay had been put forward. The Complainant had Trade Union representation but even if she had not that would not in and of itself meet the test for reasonable delay set out in theCementationSkanskacase.Having heard both parties on the issue the Court took a break to consider the time limits issue. Conclusions of the Court on the Preliminary Matters The issue arising in this appeal is whether reasonable cause has been shown for an extension of time for the making of a complaint to the WRC. The established test for deciding if an extension should be granted for reasonable cause is that formulated by this Court in Labour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: - It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The test formulated inCementationSkanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows: -The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay cease to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The Court is satisfied that in this case the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Complainant’s last date on site was 25thApril 2019. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place. As the Complainant’s claim was not presented to the Workplace Relations Commission until 11thFebruary 2020, it was outside of the statutory time limit. The Court finds that the reason proffered by the Complainant that she did not have legal representation does not explain the delay, nor does it afford an excuse for the delay and therefore the issue is not properly before the Court. Having concluded that the Protected Disclosures element of the case was out of time the Court then set out for the parties how it intended to proceed. Normally in an unfair dismissal case the burden of proof lies with the employer to show that the dismissal was not unfair. However, in this case in order for the Complainant to have the benefit of the Act she has to establish that her dismissal was wholly or mainly attributed to her Trade Union membership and or activities. The Court indicated to the parties that it proposed to proceed to hear submissions first, then the evidence and finally legal argument and closing statements with the Complainant going first. The parties indicated their agreement to proceeding on that basis. Summary of Complainant’s submission and evidence Ms Mc Veigh BL submitted that the Complainant in this case commenced working with the Respondent following an interview on 13thJune 2018 with Ms Angela Harrow Assistant General Manager with the Respondent. At that time the Complainant had 17 years’ experience in the hospitality industry working in a mixture of fine dining, pubs and high- end hotels. At the interview for a position with the Respondent Ms Harrow informed the Complainant that her hourly rate would be €10.55 and that she would retain 80 per cent of all tips with the other 20 per cent going to back of house staff. The Complainant signed a contract of employment at the interview. From the 9thJuly 2018 to 23rdJuly 2018 there was a two-week training period for all staff and then the restaurant opened on the 24thJuly 2018. Ms Mc Veigh BL submitted that the Complainant would give evidence in respect of issues with her pay and her tips, raising these issues with Mr Belton, and the issues not getting resolved. The Complainant will according to Ms Mc Veigh BL, also give evidence in respect of media interest in the tip issue and the fact that it was raised with a politician which led to her being introduced to Mr Brendan Ogle from Unite Trade Union. Following the meeting with Mr Ogle the Complainant joined the Union and organised other workers in the Respondents employment to join the Union. The Complainant’s evidence will be that Mr Belton’s attitude towards her changed after she joined the Union towards the end of January 2019. The Complainant will also give evidence in respect of what occurred on the 1stMarch 2019, 8thApril 2019, 12thApril 2019 and her ultimate dismissal on 25thApril 2019. The Complainant in her evidence to the Court stated that she attended a formal interview with Ms Harrow who informed her that the position would be a waiter position on €10.55 per hour plus tips with 20 per cent of her tips being held back for back-room staff. The Complainant confirmed that she signed the contract on the day of the interview, it was an online contract, and she never got a hard copy of it. The contract did not mention tips but confirmed that her hourly rate was €10.55. The Complainant confirmed that there was a two-week training period. It was her evidence that on the last day of training the staff were called downstairs to the private dining room in the restaurant by Mr Belton and told that there was a change in the credit card procedure and that they would only be getting 40 per cent of credit card tips. They were not told where the other 60 per cent of the tips were going. The Complainant raised the issue with Mr Belton about the tips and he said the instruction had come from the U.K and that he would try and sort it. The Complainant received her first payslip on the 5thAugust 2018. The payslip showed her earnings divided into basic and “tronc”. It was her evidence that her basic wage was not the €10.55 euro set out in her contract but was €9.55 the minimum wage. At the time she did not know what “tronc” was. It was the Complainant’s evidence that she was offered an hourly rate plus tips, she was never advised about commission or “tronc” before she started the employment The Complainant spoke to Mr Belton about it, he advised that “tronc” was the balance between the minimum wage and her contract rate and that it came out of the service charge. Mr Belton told her that the tips would be sorted in the next pay packet. The Complainant felt at that time that she had a good working relationship with Mr Belton and believed him when he said the tips issue would be resolved. At this point staff were starting to leave the Restaurant because of the tips issue. The Complainant stated that when she got her second pay slip on the 2ndSeptember 2018 there were four categories on the payslip. Basic which was minimum wage, tronc which brought her hourly rate up to her contractual rate, bonus which was supposed to be six weeks tips but was nowhere near what she had earned in tips during that period and Sunday premium. The Complainant stated that she again raised the issue with Mr Belton enquiring why the tips issue had not been resolved, he stated that the issue was with the U.K. and that he was trying to resolve it. At that stage early October 2018, staff were annoyed that this issue had not been resolved. The bar staff who were part of the back-room staff informed her that they were not getting any of the tips. Sixteen staff signed a letter which was given to Mr Belton setting out that they wanted to be guaranteed that they would receive 50 per cent of service charge and that it would be applied to their pay checks. They also requested that they be informed each month where the remainder of the card tips went and that their pay frequency be changed from monthly to fortnightly. Following on from the letter it was agreed that their pay frequency would be changed from monthly to fortnightly and it was agreed that they would receive 50 per cent of credit card tips. The Complainant stated that when she received her third pay slip in October 2018 the issue regarding tips had still not been resolved, and staff were continuing to leave because of it. In November she did not receive any bonus at all in her payslip. There was a lot of media coverage at the time including articles in the papers about the tipping policy in the Dublin restaurant, and customers were asking questions about the tipping policy. In November 2018 Mr Belton put a notice on the door where staff could see it stating that he was disappointed that staff were still asking customers for cash tips and that from the following Monday only Managers could take payments from customers. The note also stated that for the third week in a row the Respondent had to subsidise the tronc as there had been insufficient money accruing from the service charge. The Complainant stated that she found the way Mr Belton pinned the unsigned note to the door and the fact that it stated there would be no discussion around the change to be disrespectful to the staff. The effect of this change was that it was very difficult to put up a good service because you had to find someone to take the payment. The customers were complaining about not being able to pay and leave, so Mr Belton changed the policy to allow head waiters take credit card payments as well. All the staff were talking about the newspaper reports and the managers were stressed out because of the media attention. The Complainant stated that she still had a good working relationship with Mr Belton at this time. A famous food critic came to the restaurant and Mr Belton had him seated in her section and asked her to look after the critic. On the 21stJanuary 2019 the manager on duty asked the Complainant to take part in a photo shoot for Blue Monday with another member of staff which she did. In early January 2019, four other members of staff spoke to a local TD about the difficulties they were having in respect of a number of issues including the issue of tips. The TD Ms Joan Collins arranged a meeting for them with Mr Brendan Ogle from Unite Trade Union. Mr Ogle advised that he could help them but that they would have to join the Union and that for the Union to be effective they would need to recruit other workers in the restaurant. It was the Complainant’s evidence to the Court that she joined the Union because she felt she could not resolve the issues they were having on her own and she was not having any success in getting Mr Belton to resolve the issues. The Complainant stated that she did not tell Mr Belton that she had joined the Union, but her colleague Ms Laiermanova and herself were actively recruiting other employees in the restaurant and explaining to them what the Union is and why they should join the Union. The Complainant stated that people joined because they wanted to resolve the issues and believed they could get the money that they were owed. The Complainant stated that she was aware that Mr Ogle of Unite was talking to the Respondent and dealing with someone in the UK office in respect of issues they had raised. One of those issues was the fact that they had to change into their uniform in the locker room and there were cameras where they were changing. The rooms where they were originally supposed to change had been converted into storage rooms and had been locked by Mr Belton so they could not access them. The Complainant stated that she was in touch with Mr Ogle nearly on a daily basis. There were ongoing issues arising from the fact that staff had left and not been replaced resulting in the staff who remained having to work fourteen hours and sometimes not getting their breaks. The Complainant stated she would raise these issues with Mr Ogle. It was her evidence that she felt being in the Union was working because issues such as the cameras in the changing area were addressed. Once Mr Ogle raised that issue with Ms Pretorius the Respondent’s Head of HR from the U.K. it was resolved. After Mr Ogle met with Ms Pretorius, the Complainant stated that her relationship with Mr Belton and other managers in the restaurant changed dramatically. She felt that she was constantly being watched and work was disproportionately being assigned to her. The Complainant stated that her section would be full while sections beside her would have little or no customers. The normal practise was that customers are as far as possible evenly distributed between the sections and the staff. The impact of this not happening, was to put the Complainant under pressure as she could not take all the orders at the same time. The Complainant stated she believed that the reason she was treated like this was because she was openly recruiting staff to the Union and distributing Union leaflets. She would also talk to staff about the benefits of joining the Union. The Complainant stated that she also talked to staff when they were in the locker room and because the camera was in the locker room and linked back to Mr Belton’s office, he would see her handing out leaflets and talking to staff. The Complainant stated that managements changed attitude to her started in February 2019 Up until the end of January high profile guests were put in her section, she was asked to do a photo shoot for the Respondent but once she joined the Union and started recruiting staff Mr Belton’s attitude to her changed and he tried to make out that she was not doing her job correctly. On the 18thFebruary the Complainant through her manager communicated a change in order to the kitchen as was the normal practise. However, the manger did not communicate the correct order and Mr Belton started shouting at the Complainant in front of her colleagues and would not allow her to explain what had happened. The Complainant stated that a further incident occurred on the 21stFebruary 2019. She was on her break and a manager took a customer’s order incorrectly. Mr Belton again reprimanded her and when she explained that she did not take the order as she was on her break, he stated that he was going to check the camera. Mr Belton never came back to her about the incident even though her manager confirmed that he had taken the order incorrectly. The Complainant stated that on the 1stMarch 2019 she was working the section that had been allocated to her when she was swapped with a waiter in another section. The Complainant stated that it was unusual that they were swapped over in this way. A customer in the new section had finished her meal and wanted to pay. The waiter who had served that customer her main meal had been swapped with her so she brought the bill to the customer’s table and started looking for a manager or head waiter who could take the payment. The customer wanted her to take the payment, but she explained that in line with the Respondent’s policy as a waiter she could not take the payment. The Complainant stated that she was walking around with the card machine in her hand looking for someone to take the payment and the customer was walking behind her. Normally customers would wait at the table, but this customer was on her lunchbreak and was in a hurry to leave. The Complainant stated that she spotted Ms Laiermanova and she asked her to take the payment as the customer had been waiting a while to pay. The Complainant stated that she then walked away and went back to serving her tables. A while later one of the managers asked her what had happened at the table, but she did not know what the manager was referring to. At 3.00pm another member of staff told her she needed to go to Mr Belton’s office, but did not say why. It was only later that day that she learnt that Ms Laiermanova had skipped the tip option on the card machine. The Complainant stated that when she arrived at Mr Belton’s office, he had two letters in his hand. He handed her the two letters and said here is your letter of suspension and here is your invitation to a disciplinary hearing. When she stated that she had not done anything wrong, Mr Belton said that there was no time for explanations. The Complainant stated that she was told to empty her locker and that another member of staff would escort her from the building. The Complainant stated that the meeting with Mr Belton lasted about ten seconds. The second letter that Mr Belton had handed to her was an invitation to attend a disciplinary meeting at Café en Seine, which is a public bar, at 2.00pm the following Monday. The Complainant stated that she only discovered that Mr Belton had covertly recorded the suspension meeting a few days later when he sent her the recording on WhatsApp. The Complainant stated that she did not get the opportunity to read the letters Mr Belton handed her until she was outside of the building. The letter stated that she was being suspended on full pay to allow an investigation into an allegation that she had refused to allow a customer to make a credit card gratuity payment and that she had requested cash. As the Complainant did not have access to the pass code to use the credit card machine, she could not understand the allegation as she had operated in line with Mr Belton’s policy and had asked a head waiter to take the customers payment. She had not at any time asked the customer for a cash tip. The letter stated that the allegations appeared to fall within the category of Gross Misconduct, and she was warned not to contact anyone connected with the investigation. The second letter inviting her to attend a disciplinary hearing on the following Monday the 4thMarch in Café en Seine at 2.00pm set out four allegations whereas the first letter only set out two allegations. The allegations in the second letter were as follows. Denying a guest, the ability to leave a credit card gratuity Bringing the company into disrepute Failing to follow company procedure Embarrassing a guest. The letter went on to state that enclosed with the letter were details of all investigation evidence that would be used during the disciplinary hearing as follows. CCTV footage interaction with the guest 1/3/2019 CCTV footage skipping gratuity request on PDQ machine Statement from three staff members who spoke with the customer after the fact. Statement from Guest TBC. The letter was signed by Mr Belton and stated the Respondent viewed the issues as potential Gross Misconduct. On the advice of her Union the Complainant stated that she sought the evidence set out in the letter as it was not provided with the letter. The following day Saturday she received the CCTV clips that was when she realised what table they were referring to. The CCTV clearly showed she did not take the payment. The Complainant stated that she did not have the code for the machine so she could not take the payment or skip the gratuity request. The three statements that were provided were anonymous and not dated and it was not clear to her how they were relevant. One was a complaint about being asked to join the union, the second was about a comment she was alleged to have made about a different restaurant and the third was about a colleague of the customer coming back to the restaurant to leave a tip. The Complainant stated that up to that point she was not aware that a colleague of the customer had come back to the restaurant. The Complainant stated that she later became aware that the same complaint had been made against Ms Laiermanova the other Union representative. The date of the hearing was changed to facilitate the attendance of her Union Official and the venue was changed to the Union Offices as the Respondent had not booked a room in Café en Seine. The Respondent had intended to hold the disciplinary hearing in the public bar but Mr Ogle Unite had objected to the hearing being held in a public bar particularly as there were customers seated at the next table to them. The hearing was chaired by Ms Laura Mills (Bamber) Company Director. Ms Mills in her outcome letter of 22 March 2019, accepted that the Complainant could not use the codes on the machine but found based on the CCTV footage that the Complainant had left the guest unhappy, that the guest was embarrassed and uncomfortable, and that the guest had been left with a false impression of the Respondent’s tipping policy. The letter went on to say that the Complainant was getting a first and final written warning because of the seriousness of the offence and any further examples of misconduct or poor performance would be subject to more severe disciplinary action. The Complainant stated she could not believe that she was getting a final warning when she had complied with all procedures and could only assume it was related to her Trade Union activities. By email of the 27thMarch 2019 she appealed Ms Mills decision to Ms Conway and attended an appeal hearing. The Complainant stated that by letter of 23rdApril 2019 Ms Conway held that her appeal was unsuccessful and the sanction of a first and final warning was upheld. Ms Conway listed the conclusions that she had based her decision on including, that the allegation of wrongdoing rests on the account of the customer, that two people had told the customer that she could not leave a credit card tip, and the CCTV showed that the Complainant was one of two people that had spoken to the customer. The letter went on to say that Ms Mills had ensured that Mr Belton’s statement that they were relying on was accurate, even though the witness statements were not signed, Mr Belton had confirmed the accuracy of his own statement. The Complainants suspension was lifted with effect from the 22ndMarch 2019 and she was advised to report to Mr Belton who would inform her of her next shift and the rota. The Complainant stated that when she returned to work, she was told by Mr Belton to “chose a side”. She understood that to mean that she should pick her job or the Union. On the 8thApril 2019 just two weeks after she had returned to work, the Complainant was again invited to a meeting with Mr Belton. At that meeting Mr Belton advised her that she was being suspended for allegedly bringing the company into disrepute. No details were provided in the letter of suspension of what it was she was alleged to have done to bring the company into disrepute. By letter of the 12thApril 2019 the Complainant was invited to a second disciplinary hearing the allegations set out in the letter were 1) bringing the company into disrepute and 2) failing to follow company standards and etiquette. Both complaints appeared to be based on unsigned statements of two staff members that she had conversations with the 8thApril 2019 and an allegation that she had been slow bringing a drink to a customers table. However, there was no complaint from a customer provided. The letter stated that the Respondent was relying on a statement from a manager, statement from team member, and a statement from the note taker at her suspension meeting. The letter advised that the Respondent viewed the behaviour as gross misconduct and that it could lead to summary dismissal. The disciplinary hearing was chaired by Mr Richard Clarke Operations Director who was the decision maker. The statements being relied on by the Respondent were not signed statements at the time they were given to the Complainant. The Complainant stated that on the 18thApril 2019 she had set out her response for the Respondent in a document that she handed in at the disciplinary meeting. In that note she set out that she felt she was being subjected to a concerted campaign of bullying and intimidation because of her Trade Union Activities. The Complainant stated that she highlighted the fact that she had been given a first and final written warning despite not having breached any company policy or procedure and that decision was still under appeal. The Complainant stated that the note stated that further allegation had now been made and she was not being afforded an opportunity to challenge the accuracy or otherwise of witness statements. The Complainant did not give any further response to the allegations at the disciplinary hearing. Mr Clarke by letter of 25thApril 2019 found that the statement by all the witnesses were accurate and that some of the statements alleged to have been made by the Complainant were defamatory, that she had neglected her duties as a waitress, and that the Complainants behaviour on the 8thApril 2019 constituted misconduct. The letter went on to say that she was dismissed on the grounds of unsuitability. The Complainant stated she was paid one months’ notice but was not required to work her notice. The Complainant stated that she did not appeal that decision as she did not believe based on her previous experience that there was any point in appealing. The Complainant stated that she believed that she was dismissed because of her Trade Union activities. The Complainant confirmed that at the time she was dismissed her hourly pay rate was €11.20 and that she worked an average of 45 hours per week. The Complainant confirmed to the Court that she got another job straight away so did not have any loss of earnings. Mr West in cross examination asked the Complainant if she accepted that some staff were asking for cash tips. The Complainant agreed that if staff were retaining cash tips, they would be short-changing their colleagues. In respect of the notice put up by Mr Belton in November she felt the tone of the notice was very disrespectful to staff. In response to a question from Mr West the Complainant stated that she was not aware that they had to raise tips to cover their contractual wage when she joined the Respondent, but accepted that the notice showed that Mr Belton was annoyed that some staff were keeping cash tips. The Complainant confirmed that in respect of the 1stMarch 2019 incident she never saw the customer coming back to the restaurant on that day and that she had never requested a cash tip. Unfortunately, on the day he suspended her Mr Belton did not allow her to say anything. The Complainant confirmed that she was a Union member and that herself and Ms Laiermanova were encouraging other staff to join the Union. She also confirmed that they left Union leaflets in the locker area and that management had never stopped them from handing out leaflets or leaving leaflets in the locker area. In respect of the two incidences that the Complainant had raised that had occurred in February 2019, Mr West put it to her that if the Respondent had it in for her, they could have dismissed her then. The Complainant stated yes but that it was not unusual for there to be a delay with food and that neither incident was her fault. The Complainant confirmed that she received both the letter of suspension and the invitation to the disciplinary hearing at the same time. The Complainant also confirmed that she was never interviewed by Mr Belton and asked for her version of events. The next witness was Mr Brendan Ogle Unite Senior Official who stated that he was contacted by Joan Collins TD, and he agreed to meet in her office in early January with some of the workers from the Respondent’s restaurant in Dublin. The workers raised issues with him in respect of tips, cameras in the changing area and other issues. Towards the end of January, the workers contacted him and advised that Ms Laeirmanova and the Complainant would be the Union representatives in the restaurant. Mr Ogle stated that Unite Trade Union had started taking employees of the Respondent into membership and he estimated that there were about 20/21 members. Following discussions with the representatives he decided that the strategy would be to engage formally with the Respondent about the issues they had. Mr Ogle stated that he made contact with the Respondent’s head office in the UK and received a reply from Ms Pretorius head of HR on the 4th ofFebruary 2019 offering a meeting in Dublin and suggesting an initial phone call. There was some toing and froing of emails, then they had a short phone call, and the meeting was set for 19thFebruary 2019 in Unite Offices in Dublin. In the intervening period the representatives were advising him that some of the issues they were having in the workplace were getting worse. Mr Ogle stated that he considered the offer of a call and a meeting with Ms Pretorius a positive development. He asked Ms Pretorius if the Respondent was open to a collective relationship with a Union and she stated that they were a people focused organisation. The meeting with Ms Pretorius was held in the Unite office. He raised the issue with her of the camera in the changing area which was linked to Mr Belton’s office and the fact that staff were very concerned about this. Ms Pretorius said she was not aware that there was a camera in the changing area and was deeply concerned about it. Ms Pretorius stated that she would rectify it which she subsequently did. Mr Ogle stated that he outlined the issues around the tips, but Ms Pretorius was non-committal on that issue she outlined the various practices in respect of tipping that operated in the UK. Mr Ogle stated that he walked Ms Pretorius from Unites office to the door of the Respondent’s restaurant, they shook hands and said they would speak again. That afternoon Mr Ogle received a phone call from the Complainant stating that Mr Belton had been called to a meeting with Ms Pretorius and the camera issue had been resolved. Mr Ogle stated that he was aware that both the Complainant and Ms Laeirmanova were handing out Union flyers in their workplace. On the 27thFebruary 2019 he had drafted a notice to Unite members in the Respondent’s restaurant in Dublin which they were distributing to members advising of the meeting with Ms Pretorius and acknowledging the issues that members had raised with the Union at that point. By the 27thFebruary 2019 he had not had any further contact from Ms Pretorius so he sent an email and requested a response by 5th March 2019, as to whether or not the Respondent would engage with the Union on behalf of its members. Mr Ogle stated that on the afternoon of Friday of the 1stMarch 2019 he noticed a number of missed calls from the Complainant, there was a voice mail message stating that herself and Ms Laiermanova had been suspended and that a disciplinary hearing was set for the following Monday. At 16.52 on the same day, he received an email response from Ms Pretorius to his email of the 27thFebruary 2019, stating that the Respondent had no plans to enter into a collective agreement with Unite and that employees could contact Ms Pretorius directly. Mr Ogle stated that he was surprised to receive that response as he felt they had been making progress. In respect of the disciplinary process Mr Ogle stated that the Respondent originally intended to hold it in a public bar, but he offered the use of a room in Unite’s offices. The Respondent sought to rely on anonymous statements from three members of staff and an alleged complaint from a customer which was never produced. Mr Ogle sought a copy of the customer’s statement and an opportunity to challenge the witnesses. The meeting was adjourned to allow the Respondent to consider these requests. However, the meeting was never reconvened. The Respondent just issued the outcome of the process by letter of 22ndMarch 2019, which was to place the Complainant on a first and final warning. Mr Ogle stated that he had a number of concerns in respect of the procedure, in particular the fact that they had witness statements which were unsigned and undated, and there was no letter of complaint from the customer. An appeal meeting was held which he attended with the Complainant. While the Respondent apologised for the fact that Mr Belton had covertly recorded the investigation meeting and confirmed that this was not in accordance with their policy, the decision to place the Complainant on a first and final written warning was upheld. Mr Ogle confirmed that he had seen the CCTV being relied on by the Respondent and that he could see nothing on the CCTV that pointed to wrongdoing he also confirmed that the CCTV did not have sound. In respect of the Complainant’s second suspension, Mr Ogle stated the complaint was that she had not served a customer quick enough as reported by another member of staff and that she had been expressing a view to two work colleagues about issues in the workplace while they were carrying out a task together. Some of the allegations in the unsigned witness statements did not make sense in particular the statement from the notetaker at the suspension meeting. Mr Ogle stated that he advised the Complainant to hand in a written statement at the disciplinary hearing. When he saw Mr Clarke’s letter of dismissal dated the 25thof April 2019, he saw that Mr Clarke had held that the conversation she had with her colleagues were defamatory and based on previous experience with the Respondent, he did not believe there was any point in lodging appeal particularly, when Mr Clarke had not addressed any of the issues that the Complainant had raised in the note she had handed to him at the meeting. In response to questions from Mr West on behalf of the Respondent Mr Ogle stated that he believed the engagement with Ms Pretorius prior to the 1stMarch 2019 was positive. Mr Ogle confirmed that the Complainant and Ms Laiermanova were the local Union representatives in the Respondent’s restaurant, as opposed to shop stewards as at the time Unite did not have sufficient numbers in that employment to form a stand-alone branch. He confirmed that when he met Ms Pretorius, he did not involve the two representatives in that meeting. In respect of the documents that the Respondent was seeking to rely on such as the anonymous statements he was trying to ensure that the correct procedure was followed in line with SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures. Mr Ogle stated he had concerns about the process but had engaged with the Respondent and had even provided an office where the disciplinary meeting could be carried out. In response to a question from the Court Mr Ogle confirmed that statements from the customers was never produced during any stage of the first or second disciplinary process against the Complainant. On both occasions, Mr Belton put forward a version of events in respect of what was alleged to have occurred and his version of events was accepted without question by his colleagues who carried out the disciplinary and appeals processes. Ms Laiermanova in her evidence to the Court confirmed that herself and the Complainant were the Unite representatives in the restaurant and that they had recruited about twenty people into the Union. Ms Mc Veigh BL on behalf of the Complainant submitted that the evidence shows that there was no valid reason to dismiss the Complainant and that she was dismissed because of her Trade Union membership and/or activities. Ms Mc Veigh BL submitted that Section 14 of the 1993 Amendment Act provides that section 2 of the Act does not apply if the dismissal resulted “wholly or mainly from the Employees trade union membership or activity”. Ms Mc Veigh BL submitted that they are two separate tests. The wholly test would de-facto require the employer to admit that they had dismissed for reasons relating to Trade Union activity. The mainly test must allow for another reason which was the activating reason. It is her submission that this can only be a light burden of proof on the Complainant. Ms Mc Veigh BL opened the case of Dahouv Serco Ltd[2016] EWCA CIv 832which approved the approach adopted inKuzel v Roche Products Ltd[2008] IRLR 530 which held “that when an employee positively asserts that there was a different and inadmissible reason for his dismissal , he must produce some evidence supporting the positive case , such as making a protected disclosure. This does not mean however, that in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for a different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for dismissal and to produce some evidence of a different reason.” Ms Mc Veigh Bl submitted that the first steps the Court must take is to identify the Respondent’s reason for dismissal as set out inAbernethy v Mott Hay & Anderson[1974] ICR 323 as follows; “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be a set of beliefs held by him, which cause him to dismiss the employee”.In a case where the employee puts forward an alternative reason for the dismissal, the Court then has to establish thetruereason for dismissal. In the case ofASLEF v Brady[2006] IRLR 576 the Court held “ifthe employee puts this reason in issue by adducing evidence which casts doubt upon the alleged reason, the burden lies on the employer to satisfy the tribunal that the reason it relied upon was indeed the true reason.”The Court went on to say “[Even a potentially fair reason may be the pretext for a dismissal for other reasons. To take an obvious example, if the employer makes the misconduct an excuse to dismiss an employee in circumstances where he would not have treated others in a similar way, then in our view the reason for dismissal- the operative cause- will not be the misconduct at all. On this analysis, that is not what has brought about the dismissal. The reason why the employer then dismisses is not the misconduct itself. Even if that in fact merited dismissal, if the employee is treated differently to the way others would have been treated, being dismissed when they would not have been, then in our judgment a tribunal would be fully entitled to conclude that the misconduct is not the true reason or cause of the dismissal. The true reason is antipathy which the employer displays toward the employee”. In the case ofJohn Clarke v CGI Food Services Limited and CGI Holding Limited[2021] 32 E.L.R.25 Humphrey’s J. held “Decision- makers have to look beyond the mere face value of either side’s arguments in a dismissal dispute given the ease in which a position can be contrived and manipulated Royal mail Group Ltd v Jhuti [2019] UKSC 55 considered.” At paragraph 20 of that judgment Humphreys J states “the evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in the submission by the employee “to dress up the dismissal as a performance- related dismissal” As put by Lord Wilson in Royal Mail Group Ltd v Jhuti [2019] UKSC 55 at para.60 “If a person in the hierarchy of responsibility above the employee……determines that, for reason A (here the making of a protected disclosure), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the Court’s duty to penetrate through the invention rather than to allow it also to infect its own determination” Ms Mc Veigh BL relying on the caselaw set out above, submitted that one of the questions that arises for the Court to consider is whether another worker would be penalised or dismissed for the same reason. Mr Belton gave evidence (set out below in this decision) that from November some employees were not compliant with the instruction he had issued about not asking for cash tips, but they were not investigated. Mr Belton in his evidence (set out below) confirmed that he had access to open table booking system but did not pursue those members of staff who were keeping cash tips. The Respondent in this case made misconduct the issue in terms of the Complainant not following the Respondent’s procedures but did not apply the same to other employees who they were aware were not following the Respondent’s procedures. Therefore, it is submitted that not following the Respondent’s procedures cannot be the operative reason for the dismissal. Ms Mc Veigh BL submitted that the Complainant was a high-profile waiter, who had been selected for a photo shoot by the Respondent, had been selected to serve high profile guests who visited the restaurant, but something changed after the end of January 2019. The Complainant stated that things changed after Ms Pretorius met with Mr Ogle. Ms Mc Veigh BL submitted that Mr Belton’s evidence around not knowing that Ms Pretorius had met with Mr Ogle is not credible. Mr Belton’s evidence was that on the 1st of March when he suspended the Complainant, he knew nothing about Unite the Union, yet one of the unsigned statements that he sought to rely on and was identified in the letter inviting the Complainant to a disciplinary hearing was from a member of staff complaining about being asked on a number of occasions during her working hours to join the Union. That individual in their witness statement made no reference to the incident on the 1st of March 2019 yet Mr Belton as the person investigating the incident considered it to be relevant to the disciplinary process. Mr Belton knew when he drafted the suspension letter and the disciplinary letter in respect of the 1stMarch 2019 incident, that this Complainant could not have skipped the tip screen as alleged in the letters she received as she did not have access to the codes, yet he persisted with the disciplinary process. It has been accepted by the Respondent’s witnesses that the Respondent’s handbook was not followed, that the meeting should not have been covertly recorded by Mr Belton and that there were multiple issues with the process including relying on extraneous information. It was also accepted that in respect of the first incidence this Complainant had not breached any of the Respondent’s processes and procedures. In effect the Complainant was given a first and final warning because the customer appeared on the CCTV footage to be unhappy. No evidence was put before the Court in respect of any other staff member being put on a first and final written warning because a customer appeared to be unhappy. Ms Conway the Respondent’s Head of People, confirmed in her evidence that in respect of the March 1stincident that she interviewed Mr Belton, but she did not tell the Complainant that she had done so, nor did she record it in her decision. Ms Conway confirmed that the Complainant was not placed on a first and final warning for asking for a cash tip but did not record that in her decision. Ms Mc Veigh BL submitted that neither Ms Mills nor Ms Conway looked beyond the decision to discipline, they took Mr Belton’s statement at face value. Ms Mc Veigh BL submitted that the main reason for the first and final warning was Trade Union activity. The reason put forward by Mr Belton was bogus and an invented reason and he has confirmed that in his evidence to the Court. In respect of the second disciplinary proceeding the Complainant was in effect dismissed because of conversations she had on particular day with two work colleagues and not serving a glass of orange juice to a customer quick enough. Again, no evidence was put before the Court of other staff expressing a viewpoint in relation to their employer with work colleagues and or not delivering a drink to a customer quick enough being brought through the disciplinary process, much less being dismissed. Once again, the statements of the witnesses were not tested in any way, and Mr Belton’s statement was taken as being correct without any supporting statement from the customer. Mr Clarke who made the decision to dismiss, in his letter found that the statements alleged to have been made by the Complainant were defamatory of the Respondent, but in his evidence to the Court could not set out how he had come to the conclusion other than that was the advice he received from the HR company who he confirmed were not present at the disciplinary hearing. In the case to hand Mr Belton carried out the investigation against a background of the correspondence from Mr Ogle to Ms Pretorius. The email of 1stMarch from Ms Pretorius to Mr Ogle on the day the Complainant was escorted from the building supports the contention that the Trade Union activity was a triggering reason. There was a complete absence of fair procedure and that was before it came to light that the facts put forward by Mr Belton were incorrect. Ms Mc Veigh BL submitted that therefore, there must be another reason why the Complainant was dismissed. As Manager of the restaurant, it was easy for Mr Belton to know who the Union representatives were, and it is incredulous that he states that he did not. Ms Mc Veigh BL submitted that on the 1stMarch 2019 the Complainant was suspended and then ultimately dismissed on the 25thApril 2019, because of her Trade Union activities. The Complainant has confirmed in evidence that she commenced in new employment immediately and suffered no loss. She is therefore claiming in line with the Act compensation to the value of four weeks wages. Summary of Respondents submissions and evidence Mr West on behalf of the Respondent submitted that the Complainant was not dismissed for reasons relating to her Trade Union membership or activities. The reasons for dismissal are the facts known to the dismissing officer which caused him to decide to dismiss. The dismissal arose from an incident on the 8thApril 2019. Mr Clark decided that the events of the 8thApril 2019 constituted misconduct and warranted the Complainants dismissal as it showed that she was not a suitable employee. The Complainant was required to attend a disciplinary hearing, where the decision was made to dismiss her and the reasons for dismissal were set out in the letter of dismissal. The Complainant did not appeal the decision to dismiss even though she knew there was an appeal process available to her. The first witness for the Respondent was Mr Jamie Belton General Manager of the Respondent’s Dublin restaurant. Mr Belton in his sworn evidence stated that the written statement of evidence that he had submitted was a true and accurate reflection of his evidence to the Court. A summary of that evidence is as follows. Mr Belton set out his understanding of how the gratuity system worked and his belief that the gratuities were used to provide a guaranteed commission to all hourly paid staff. He was aware that there was a level of unhappiness amongst staff and that some tweaks were made to the system. It is Mr Belton’s belief that cash tips can be sporadic, so the commission system was more reliable and also provided commission for back of house hourly paid staff. Mr Belton’s evidence was that he was made aware by colleagues of a problem which had arisen regarding a customer who wished to leave a tip by credit card when she paid the bill. It appeared that the waitress may have advised that tips could not be left by credit card and only cash tips were permitted. The Respondent became aware of this when the customer returned with cash. An investigation including looking at CCTV stills showed that two staff members were involved. Mr Belton’s statement goes on to state that he took advice from their HR advisors, indicating that this appeared to be a means of getting cash from the customer as opposed to it being a gratuity through the credit card. Mr Belton stated that he was advised to suspend the staff involved and that he was given advice on a letter to issue to each of the staff members. Mr Belton stated that he gathered copies of all documentation and passed this information on to Ms Laura Mills (previously Bamber) who conducted the disciplinary hearing. In respect of the second disciplinary issue concerning the Complainant, Mr Belton stated that further concerns arose in respect of the Complainant shortly after her first and final warning had been issued and she returned to work. Mr Belton stated that the only role he played in that process was that he gathered information and provided it to HR. This was done because he felt there was significant hostility towards him from the Complainant and that more senior management who had not previously been involved with the Complainant should handle the issue. In response to questions from Ms Mc Veigh BL under cross examination, Mr Belton stated there was a formula to decide what percentage of credit card tips would go to commission, there was no splitting of tips, at the time the restaurant opened there was some confusion about how this would work. He stated that hourly paid staff are paid the minimum wage then the commission is used to bring their wages up to their hourly contract rate. If there are not sufficient tips to do that then the Respondent meets the shortfall, so everyone is guaranteed their contractual rate. Mr Belton accepted that this was not set out in the contract and that the Manager who had hired staff may not have made that clear at the point of recruitment or signing of contracts. Mr Belton stated that this top up was not called tronc in the Dublin restaurant although he accepted that he used that term in a memo he had put up and that the term was used on the payslips. Mr Belton stated that he was not sure what the difference between “tronc” and commission was. Mr Belton confirmed that he had put up the unsigned and undated memo stating that only managers could take card payments and that the reason he had done that was because he was annoyed that some staff were retaining cash tips which meant the Respondent had to meet shortfalls in the commission to bring employees’ wages up to their contractual rate. He accepted that shortly after he put the memo up, he had to change the policy to allow head waiters take payment as there were complaints from customers about delays when they went to pay their bill. Mr Belton accepted that staff were complaining about not getting their tips and that some staff left. He was unsure as to the number of staff that left. In respect of the incident on the 1st March 2019, Mr Belton stated that he rang the customer and she went through what had happened and she was annoyed with the company. It was put to Mr Belton that in his statement he had stated that he had witnessed the incident and that the customer had come back to the restaurant to give a tip. Mr Belton accepted that was the evidence he had given. However, he went on to say that in fact what had actually happened was that a colleague of the customer had come back to the restaurant with a tip and not the customer. He had not spoken to that person. He had looked up the customers details on open table and that he had rang the customer. Mr Belton accepted that his evidence now was that he did not witness the incident and that neither the waiter nor head waiter had requested a cash tip from the customer. Mr Belton also accepted that the customer had told him that she did not want to make a complaint in writing. Mr Belton confirmed that he did not keep a contemporaneous note of the telephone conversation with the customer. Mr Belton confirmed that he looked at the CCTV footage after he had rung HR for advice. Mr Belton confirmed that the Complainant was not advised that she could bring someone to the meeting or the purpose of the meeting. He also confirmed that he did not give any consideration to what the Complainant might say and did not ask her for her version of events prior to making the decision to suspend her or to progress the incident to a disciplinary hearing. Mr Belton confirmed that he had issued an invitation to the disciplinary hearing prior to completing his investigation and on the same day as he suspended the Complainant. Mr Belton accepted that he covertly recorded the suspension meeting he held with the Complainant. Mr Belton confirmed that he had not drawn up terms of reference for his investigation nor had he asked the Complainant for her version of events at any stage and that he had not drawn up an investigation report. Mr Belton stated that he had not looked at the disciplinary process contained in the Respondent’s handbook, and he could not remember if he considered dealing with the issue through an informal process as provided for in the staff handbook. Mr Belton confirmed that he had not followed the process set out in the Respondent’s handbook and that he had decided to hold the disciplinary hearing in a public bar in a nearby venue. In response to a query from the Court Mr Belton confirmed that even though he was aware that some staff were retaining cash tips and that he could have identified those staff, he had not taken any action against those staff. When asked why he treated the Complainant differently to the way he treated those other staff he stated that he “had enough”, and that the Complainant was more vocal than other staff about the issue of tips. Mr Belton stated that he did not discipline other staff as he did not witness those incidents. Mr Belton stated he felt that the press and people on the street were thinking that he was keeping the tips and he had enough. In response to a question under re-examination from his representative Mr West, Mr Belton stated that managers had nothing to do with the tips and did not receive tips. Ms Laura Mills in her evidence to the Court stated that she is a Company Director for the Respondent, and her responsibilities include the Respondent’s restaurant in Dublin. Ms Mills in her evidence to the Court stated that she was the decision maker in terms of the decision to place the Complainant on a first and final warning. Ms Mills confirmed that she did not know the Complainant prior to the disciplinary hearing. She stated that she was provided with the letter that had been sent to the Complainant inviting her to attend the disciplinary hearing and the screenshots taken from the CCTV. Ms Mills also confirmed that she spoke to Mr Belton who informed her that the client wished to leave a tip but had not been allowed to do so by credit card and that the customer had subsequently returned with cash and that it was that return that had instigated inquires as to why a gratuity had not been collected on the credit card. Ms Mills stated that it struck her by not collecting the gratuity by credit card but then collecting cash that this might circumnavigate company procedures whereby tips are pooled and distributed as commission. Ms Mills stated that the disciplinary hearing took place on the 12thMarch 2019, she accepted that holding the hearing in a public bar was not appropriate but noted that it was moved at the Union’s request to the Unions office. Ms Mills stated that she accepted that the Complainant would not have the codes for the card machine and therefore could not have skipped the screen on the card machine that invited the customer to give a tip as was alleged in the letter of suspension and disciplinary letter. Ms Mills stated the fact that the Complainant was a Trade Union member was not a factor in her decision to place her on a first and final warning. The reason she decided to place the Complainant on a first and final warning was because she could see from the CCTV the customer was unhappy. The Complainant was advised by letter of her decision and advised of her right to appeal the decision. Ms Mills confirmed that she had no further involvement in the case or the subsequent disciplinary hearing. In response to questions from Ms Mc Veigh BL Ms Mills confirmed that she had seen the letter inviting the Complainant to a disciplinary hearing but that she had no role in drafting same, she could not recall when she first saw the letter. Ms Mills stated that she knew on the 1stMarch 2019 that the Complainant was suspended she was not sure how she knew but she thought that Mr Belton rang her and told her, but she was not sure what exactly he told her. Ms Mills confirmed that she did not see the letter of suspension on the day it was issued. Ms Mills confirmed that she knew that Ms Pretorius had a meeting with Mr Ogle from Unite Trade Union, but she could not recall if she had mentioned the meeting to Mr Belton. Ms Mills stated that she believed that Ms Pretorius would have told Mr Belton what the outcome of the meeting was if it concerned his staff. Ms Mills initially stated that she had decided on Café en Seine as a venue but changed her statement to that she had agreed with Mr Belton’s choice of venue. Ms Mills stated that the allegations at the disciplinary stage were what Mr Belton said they should be and were the same as the allegations in the suspension letter. Ms Mc Veigh BL for the Complainant put it to Ms Mills that there were two allegations in the suspension letter but there were four allegations in the disciplinary letter and both letters were written by Mr Belton within a short time of each other and on the same day. Ms Mills stated that she could not recall if she had agreed the four allegations and stated that she was not aware that the Complainant had been escorted off the premises. It was Ms Mills evidence that she could not remember if she had discussed the Union request for recognition with Mr Belton prior to the 1stMarch 2019. However, she felt it was likely that she did if there were staff related issues which there were in this case. Ms Mills stated that she did not know if she saw the evidence before the hearing on the 12thMarch 2019 and confirmed that the CCTV did not have sound. Ms Mills confirmed that she had the unsigned statements from three members of staff. it was her understanding that Mr Belton had obtained those statements. Ms Mills acknowledged that the letter that issued to the Complainant stated that a statement from guest was “TBC” but no statement was ever obtained. Ms Mills stated that the reason she had decided to place the Complainant on a first and final warning was the fact that the customer was unhappy, and the Complainant was one of two people that had spoken to the customer. Ms Mills accepted that the Complainant had not breached any company procedure. Ms Mills confirmed that the allegation of ‘requesting cash’ was not part of her decision to dismiss. It was put to Ms Mills that the allegation she was asked to investigate and contained in her statement to the Court was that the client had returned with a cash tip and said she was told she couldn’t make a card tip. However, under cross examination Mr Belton had confirmed that was not what had happened, that in fact a colleague of the customer had dropped in a cash tip. Mr Belton in his evidence went on to say that he rang the customer who was annoyed at the Respondent but did not want to make a written complaint. Ms Mills stated that she believed she followed the handbook in terms of the procedure that she followed, although she did not look at the handbook at the time. It was put to Ms Mills by Ms Mc Veigh BL, that her colleague Ms Conway in her evidence to the Court (Ms Conway’s evidence was taken out of sequence to facilitate Ms Mills availability) set out below states that there were fundamental breaches of the policy. Ms Mill stated that she did not agree that the matter was not fully investigated. Ms Mills accepted that there were breaches of the policy in that the letter for the disciplinary hearing issued before the investigation was completed, the Complainant was not given all the details of the allegations against her in advance, the Complainant was not provided with all the written documents, was not provided with a statement from the guest, and the covert recording of the investigation meeting. Ms Mills stated that she thought it would be alright to hold the disciplinary hearing in a public bar but accepts now that it was not appropriate. In response to re direct from Mr West, Ms Mills stated that the CCTV footage was not played at the hearing, but the Complainant was given the footage in advance of the hearing. In respect of the statements from the three staff members Ms Mills was not sure when she saw the statements but thinks it was before the meeting and they were given to the Complainant before the meeting. Ms Mills confirmed that she had no further involvement in any issues with the Complainant. Ms Sara Conway informed the Court in her statement of evidence that her position is Head of People for Troia who trade as the Ivy Collection and have a number of restaurants across the UK and one in Dublin. Ms Conway in her evidence to the Court stated that it was the Respondent’s policy that service charges, gratuities and tips are controlled centrally and paid out as commission to ensure all staff receive their contractual rate, any money over and above what is required is rolled forward. If there is insufficient money from the service charge, tips and gratuities then the Respondent steps in and meets the shortfall to ensure all staff receive their contractual wage. Ms Conway confirmed that the hourly rate is never below and is usually above the minimum wage. Managers and those with salaried posts do not receive commission from the pool. Ms Conway confirmed she was aware that Unite the Union had approached the Respondent about recognition and that they raised issues which included the payment of commission. She confirmed that she was aware of the camera issue in the locker room in the Dublin restaurant and that the HR Director had ensured that issue was resolved. It was Ms Conway’s understanding that the Union approach was at national level within the company as opposed to local. Ms Conway stated that prior to hearing the appeal she did not have any engagement with the Complainant. Ms Conway stated that the appeal took place on the 16thApril 2019 and that her thoughts and conclusions were set out in a three-page letter dated 23rdApril 2019 which was opened to the Court. Ms Conway stated that the fact the Complainant was a Union member had no bearing on her decision to uphold the decision to place the Complainant on a first and final warning. The real reason that the Complainant was placed on a first and final warning was that she believed based on the information provided to her that the Complainant had told the customer that she could not leave a gratuity by credit card resulting in the client returning with a cash gratuity at a later stage. In response to questioning from Ms Mc Veigh BL, Ms Conway confirmed that at the time she heard the appeal she had heard about the incident and the issue relating to the camera in the changing area. The Complainants appeal went to Ms Conway, and she spoke to Ms Mills about the original outcome and they both looked at Mr Belton’s statement and Ms Mill’s outcome. Prior to the appeal meeting on the 16thApril 2019 Ms Conway stated that she reviewed the papers she received and the CCTV footage. Ms Conway confirmed that there was no evidence of the Complainant looking for or receiving cash and she did not uphold that allegation. Ms Conway accepted that she did not specifically record that in her decision. Ms Conway accepted that the Respondent’s procedure as set out in the handbook was not followed and that the procedure was completely flawed. Ms Conway could offer no explanation as to how in circumstances where she accepts the procedure was completely flawed, she still upheld the original decision. Ms Conway confirmed that she had not asked Mr Belton why he had not investigated other staff members who he believed had taken cash tips or why he had not dealt with them in the same manner. Ms Conway stated that while she accepts that the procedure was not best practise and that it may not have met the requirements of natural justice in her opinion the issue trumped the process. Ms Conway stated that she had Mr Belton’s written statement and three unsigned and undated statements. It was clear from the CCTV that the customer was unhappy, so she felt a first and final warning was appropriate. In response to a question from the Court Ms Conway stated that she was not sure when she became aware of Ms Pretorius meeting with the Union, but it was sometime prior to the appeal hearing. In response to a question from Mr West, Ms Conway stated that she did not know anything about cash being requested and she was satisfied that she knew what the issues were at the disciplinary hearing. The next witness for the Respondent was Mr Richard Clarke Managing Director. Mr Clarke informed the Court that at the relevant time he had no responsibility for the Dublin restaurant. Mr Clarke confirmed that he was aware of the earlier incident on the 1stMatch 2019 and the fact that the Complainant had received a first and final warning arising from that incident. The matter that he was holding a disciplinary hearing in respect of was the Complainant’s behaviour on the 8thApril 2019 based on the written accounts of three staff members, Nicolle Souza, Alex McLeod and William Brown. Mr Clarke stated that he had no doubt that these were the accounts of those staff although at the time he received them they were not signed. Mr Clarke confirmed that he received a document from the Complainant where she denied the allegations made by the Complainants and stated that she was dissatisfied with the way the previous disciplinary process had been carried out. She also alleged in the statement that she was being treated that way because of her Trade Union Membership. Mr Clarke confirmed that because the Complainant simply denied the content of the statements by the three witnesses, he did not interview those witnesses. He decided to accept their statements, this led him to find that there had been misconduct and that the Complainant was in breach of her final written warning, he therefore decided that dismissal was the appropriate sanction. Mr Clarke confirmed that he had not considered any other sanction. Mr Clarke stated that the Complainant was not treated any different to any other worker and the decision to dismiss was not in any way related to her Trade Union membership and or/activities. In response to questions from Ms Mc Veigh Bl Mr Clarke confirmed that he was the Dismissing Officer in this case and that he had been asked by HR to conduct the disciplinary hearing. He was given the witnesses statements but not the letter suspending the Complainant. He only became aware that the Complainant was suspended at the disciplinary hearing. It was Mr Clarkes evidence that he could not remember who had given him the witness statements. Mr Clarke stated that he had a telephone call in and around the 11thApril 2019 with Mr Belton where Mr Belton confirmed that he had supplied the witness statements. Mr Clarke stated that he understood that Mr Belton had carried out an investigation, but he did not receive an investigation report. Mr Clarke could not explain how the notetaker at the suspension meeting could provide a witness statement but confirmed that he did take her statement into account when coming to the decision to dismiss. Mr Clarke accepted that Ms Souza’s statement could not have formed part of the original allegations upon which the decision to suspend was taken by Mr Belton. Mr Clarke accepted that it is not normal practise to add on extra allegations and that he did not enquire as to how that statement came about. Nor did he look behind what Mr Belton told him or the documents that Mr Belton provided to him. In response to a question of clarification from the Court, Mr Clarke confirmed that he could not recall when he finally made the decision to dismiss. Nor could he explain how he had come to the conclusion that the Complainant having a conversation in the workplace with a work colleague was defamatory of the Respondent. Mr West in his closing statement submitted that, in order for a worker with less than one year’s service to enjoy the protection of the Act the reason for dismissal had to be one of the exceptions set out in the Act. The authorities show that a mere assertion by an employee that there is another reason for the dismissal is not sufficient. The reason for dismissal is the reason that was in the mind of Mr Clarke when he decided to dismiss. If the Respondent wanted to get rid of the Complainant because of her Union involvement they could have sacked her the previous February when there had been issues about service. Mr West submitted that there were Union leaflets in the staff area of the restaurant, and this was not an issue there was no hostility to Union membership. Mr Clarke who made the decision to dismiss had no previous engagement with the Complainant. The Complainant was provided with written statements but did not put forward a counter statement. Mr Clarke took the statements at face value which he was entitled to do. There is no legal entitlement to direct examination and particularly not in a short service dismissal where procedural fairness is not to such a high standard. The Relevant Law The Unfair dismissal Act at Section 2 exclusions states; (1) [Except in so far as any provision of this Act otherwise provides], this Act shall not apply in relation to any of the following persons: (a) 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 […], Section 6 of that Act states; (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. (2) 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, to be an unfair dismissal if it results wholly or mainly from one or more 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 [as amended by the Industrial Relations Act 1990], 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 so to engage, The Unfair Dismissal (Amendment) Act 1993 states at Section 14; Dismissal of persons during apprenticeship, training, etc. or during first year of service, for trade union membership or activities Sections 2(1), 3 and 4 and subsections (1) and (6) of section 6 of the Principal Act shall not apply to a person referred to in paragraph (a) or (b) of the said section 2(1) or the said section 3 or 4 who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2)(a) of the said section 6. Issue for the Court Dismissal as a fact is not in dispute however, in order for the Complainant to have the protection of the Act the Complainants dismissal must have arisen wholly or mainly from becoming a member of or engaging in activities on behalf of a Trade Union. Discussion These allegations were put by Mr Belton in the letter of suspension that he handed the Complainant. Mr Belton at the same time handed the Complainant a letter inviting her to a disciplinary hearing the following Monday in a nearby public house. That letter outlined four allegations. However, the allegation of asking for cash was not one of the four allegations. At the time that Mr Belton handed the Complainant the letters he would have been aware that the Complainant did not have the codes to the card machine and therefore could not have refused to allow the customer to make a gratuity payment on her card, yet he still pursued that complaint. No explanation was put to the Court as to why Mr Belton included an allegation that he knew could not be true. Ms Mills in her evidence to the Court confirmed that she knew the Complainant did not have the codes for the machine, but she still proceeded with the disciplinary process. Based on silent CCTV footage Ms Mills stated that she came to the conclusion that the Complainant had made the customer unhappy, despite the Complainant giving a credible explanation of why the customer was unhappy. No explanation was put before the Court as to why Ms Mills did not accept the Complainant’s explanation as to why the customer was unhappy. No explanation was provided to the Court as to how the number of allegations against the Complainant contained in the disciplinary letter had doubled from two to four. Mr Belton did not dispute the Complainants evidence that she was handed both letters together at the suspension meeting. Two of the three statements made by the staff members made no reference to the incident of the 1stMarch 2019 or to speaking with the customer. One of the statements was in respect of being asked to join the union while in work and the other was in respect of a conversation about an unrelated issue. The Court can find no reason for those statements to be included as part of the disciplinary process and Mr Belton offered no explanation as to how he had come by these statements, why they were unsigned and undated or why he had decided to include them as being relevant to the disciplinary hearing in particular the statement in respect of Trade Union activities in the workplace. This is confirmed in the written statement of Nicolle Souza dated 8thApril 2019 where she states that Mr Belton met with the Complainant regarding her attitude towards the company and other staff. She goes on to state that Mr Belton gave the Complainant a suspension letter and said that he would carry out an investigation and get back to her. The Court was told that Nicolle Souza was the minute taker at the meeting. It was not clear to the Court and clarification was not offered, as to how the minutes of the suspension meeting could show that the issue the Complainant was being investigated over was her attitude towards the company and other staff, but the allegations put to her at the disciplinary meeting were that she made defamatory comments about the Respondent and an alleged customer complaint about service. The Court was not provided with any evidence or documentation explaining how the allegations against the Complainant had changed other than Mr Clarke’s evidence that he spoke to Mr Belton. Mr Clarke also stated that Mr Belton did not provide him with a written report reflecting the outcome of his investigation. The Court finds that these actions in and of themselves raise serious concerns about the bona fides of the allegations against the Complainant and the processes followed in terms of coming to the decision to dismiss. This was the version of events that he reported to Ms Mills and Ms Conway, who both based their decisions in respect of the disciplinary hearing and appeal on, and both indicated in their evidence that they found Mr Belton’s version of events to be credible. They both confirmed that they had not seen a complaint from the customer only the version of events put forward by Mr Belton. He confirmed that on the 1stMarch 2019 a lady holding a clutch bag came in the door of the restaurant and had a conversation with a member of staff on reception. She stated that her colleague had returned from lunch and had been told that the waiter could not take a card tip and she wanted to leave a €10 cash tip. Mr Belton stated that a member of staff told him what had happened, and he was very annoyed. It was Mr Belton’s evidence that he saw the exchange at the reception, but he did not get involved. He stated that this was about 1.30pm. Mr Belton stated that he logged into open table and got the customers contact details and he rang the customer about 2.00pm. The customer stated she was unhappy with the restaurant but that she did not want to make a written complaint. Mr Belton did not offer any explanation for why his report to Ms Mills and Ms Conway did not reflect what had actually occurred. In a situation like this there are three possibilities. The first that Mr Belton made a genuine error, the second that the report he sent to his colleagues was correct and the third that he deliberately misled his colleagues. The Respondent makes no argument that this report was correct and therefore the only remaining possibility is that Mr Belton deliberately submitted a report that he knew to be factually incorrect. The Court finds that on the balance of probabilities that in respect of the 1stMarch 2019 incident Mr Belton deliberately submitted a report that was factually incorrect. It follows from that finding that the Court finds that the disciplinary hearing and appeals procedure which were based on an incorrect set of facts must be considered to be fatally flawed. The second suspension occurred on the 8thApril 2019 just over two weeks after the Complainants return from her first suspension arising from the first incidence and while the outcome of that process was under appeal. Mr Belton made the decision to suspend the Complainant. It is still not clear to the Court how Mr Belton came to be aware that two workers were unhappy with the contents of a conversation they had with the Complainant while carrying out their duties, or when he received their written statements. Mr Belton suspended the Complainant on the same day as the conversations are alleged to have occurred. No evidence was put before the Court to show that another worker expressing similar discontent with their employer would have been suspended and or dismissed. The Court having considered the issues set out above finds that the reason put forward by the Respondent for the dismissal was not in fact the real reason for the dismissal. The Court finds the assertion that the Complainant was disciplined because the customer was unhappy not to be the real reason for the disciplinary sanction. No other workers had in similar circumstances where the client was unhappy been placed on a first and final warning. Mr Belton gave evidence of not taking action against other staff who he was aware had breached the Respondent’s procedures in respect of requesting cash tips. This leaves the question as to why this Complainant was sanctioned when she had not breached any of the Respondent’s procedure. The Complainant submits that the reason Mr Belton pursued these issues in this manner and contrary to the Respondent’s policies was that he wanted the Complainant gone because of her Trade Union membership and /or activities. The Respondent denies this but offers no explanation for why their procedures were not followed or why Mr Belton effectively embellished or exaggerated what had actually occurred and, in that context, embellished or exaggerated the allegations against the Complainant and or in his evidence to this Court tried to minimise his role in the process which ultimately led to her dismissal. Mr Ogle stated that he had sent a follow up email to Ms Pretorius and drafted a Union circular giving an update from the meeting and setting out the options for the Union members in the Respondent’s restaurant in terms of going forward. This circular was distributed to members by the Complainant and Ms Laeirmanova in and around the 27thFebruary 2019. On the 1stMarch 2019 approximately two hours after he learned that the Complainant and Ms Marciniak had been suspended from work, he received an email from Ms Pretorius advising that the Respondent no longer wanted to engage with the Union and indicating that staff could contact her directly. He went onto say that he was not aware that Ms Pretorius had met with Mr Ogle, and he thought she became aware of the issues in the restaurant that she raised with him including the camera issue because she had a meeting with his staff that he did not know about. The Court does not find this evidence to be credible for the following reasons. While it is still not clear to the Court how Mr Belton came by these statements, at least one of the statements is not in any way related to the events that are alleged to have occurred on the 1stMarch 2019 but is a statement by a member of staff expressing discontent at being asked on a number of occasions while at work to join the Union. Mr Belton obviously believed that the Complainant was involved in engaging with this member of staff in terms of joining the Union and included it as documentation relevant to the disciplinary hearing to support the charges against the Complainant. The Court concludes that Mr Belton’s assertion that he did not know anything about the Union at that point in time does not stand up to scrutiny. Mr Belton’s assertion that he did not know Ms Pretorius had met Mr Ogle from Unite even though Ms Pretorius met him (Mr Belton) immediately after the meeting and discussed with him the issues Mr Ogle had raised with her is difficult to accept. The Court finds on the balance of probabilities, that Ms Pretorius did tell Mr Belton that she had met Mr Ogle from Unite when she was discussing the issues with him. The Court is fortified in this finding by the evidence of his colleagues Ms Mills that Ms Pretorius would keep a manager informed if she was having a meeting that affected that managers staff. In consideration of all the evidence and submissions of the Complainant and the Respondent and for the reasons set out above the Court finds on the balance of probabilities that Mr Belton did know that the Complainant was a Union member and involved in Union activities. The Court having found, that the initial disciplinary process was based on a false premise in that certain events as originally outlined by Mr Belton and relied on by Mr Belton’s colleagues throughout the disciplinary process had not actually occurred at all, concludes that in respect of the first incident Mr Belton misrepresented the facts of what had actually occurred and, by his own evidence had in fact-initiated contact with the customer who declined to make a written complaint. In respect of the second investigation the Court concludes that Mr Belton had initiated and influenced the second investigation that ultimately led to the Complainants dismissal shortly after she returned to work following suspension arising from the first set of allegations. This conclusion is based on the fact that in respect of the second incident Mr Belton was aware the Complainant was on a first and final written warning and escalated a conversation between workers into an issue worthy of suspension. This issue then somehow became defamatory statements and attracted another element related to customer service which had not been raised with the Complainant at her suspension meeting or in the letter of suspension given to her by Mr Belton. The allegations were then padded out with a statement from the notetaker who attended the suspension meeting, none of which is provided for in the Respondent’s procedures set out in their handbook. The Court having determined above that the reason put forward by the Respondent is not the reason the Complainant was dismissed has to look behind the reason relied on by the Respondent as to what could have motivated the Respondent to act in the matter. The Court finds, based on the evidence before it and in particular the evidence of Mr Belton, that the Complainant was treated differently to how other workers had been treated in similar situations. In coming to that finding the Court relies on the following. The fact that the Complainant was sanctioned despite not having breached any of the Respondents policies. The Court does not accept the evidence of Ms Mills that the Complainant was sanctioned because a customer was unhappy as credible evidence. Mr Belton’s evidence that he had treated the Complainant different to how he had treated other staff because he had “had enough”. Mr Belton’s evidence that the Complainant was one of the main people raising the issue of the tips and that he was fed up with being asked about the tips and members of the public thinking he was pocketing them when salaried members of staff like himself did not get any of the tips. The Court places particular weight on Mr Belton’s decision, not disputed or explained in evidence by him, to include as relevant in the papers relied upon in the first disciplinary process, an unsigned and undated statement allegedly received from a member of staff alluding only to the Complainant’s Trade Union activities. Determination The findings of the Court are as follows; That the actions of the Respondent raise serious concerns about the bona fides of the allegations against the Complainant. That on the balance of probabilities Mr Belton deliberately submitted a report to Ms Mills and Ms Conway that was factually incorrect. That the disciplinary procedures that flowed from that report was fatally flawed. That Mr Belton was actively involved in the second disciplinary process. That the allegations in the second disciplinary process were changed without any explanation as to how they changed or why they were changed to the more serious allegation of making defamatory remarks against the employer. That the decision that flowed from that process was flawed. That the reason put forward by the Respondent for the dismissal was not the real reason for the dismissal. That Mr Belton’s evidence that he was not aware that the Complainant was a member and active in the Union was such as not to be credible. Having reviewed the caselaw opened to the Court and following the dicta relied on by Humphrey J inJohn Clarke v CGI food servicethat the Court should look beyond the mere face value of either sides arguments, the Court determines that in this case the evidence supports the Complainant’s contention that the allegations of ‘misconduct’ were an attempt to hide the real reason for her dismissal which was because of her Trade Union activities. The Court Determines that the Complainant was dismissed mainly for her Trade Union activities and that she therefore can avail of the protections provided under section 14 of the Unfair Dismissal (Amendment) Act 1993 and for the reasons set out above finds that she was unfairly dismissed. The Court, having heard the parties on the three forms of redress available under the Act determines that in the circumstances of this case compensation is the appropriate form of redress. The Court has considered the Complainant’s evidence of mitigation and loss and awards compensation of €2,016 calculated as follows. The Complainant was earning €11.20 an hour and working on average 45 hours a week. In accordance with the Act as the Complainant did not suffer a loss the maximum the Court can award is four weeks wages being €2,016. The Court in the circumstances of this case determines that the maximum award is the appropriate compensation and awards €2,016 The Court determines that the Complainant was unfairly dismissed and that compensation in the amount of €2,016 should be paid to the Complainant. The decision of the Adjudication Officer is set aside. The Court so determines.
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