Complainant

Respondent

Parties

Olive Hogarty

Gerry Rafter, The Rafter's Gastro Bar/the Rafter Dempsey's

Representatives

  Self-Represented

Tommy Cummins, Adare Human Resource Management

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00040059-001

24/09/2020

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

CA-00040059-002

24/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040059-003

24/09/2020

The Complainant was employed by a Public House/Gastro Pub from 6th April 1998 until the 30th October 2020. She gave her notice of resignation on the 9th of October 2020.

She maintained that she had been Constructively Dismissed with allied Hours of Work (Banded Hours) and Terms of Employment information complaints.

The rate of pay was stated to be €720 Gross for a 30-hour week.

It should be noted that a number of local efforts at resolution by the Parties were attempted especially after the initial 19th May 2020 meeting. Unfortunately, these efforts did not prove to be successful possible and a final in person hearing was heard on the 26th April 2021.

The Complainant submitted a written statement and gave an extensive Oral Testimony. She was cross examined at length by Mr. Cummins for the Respondent.

1:1      CA-00040059-001 - Banded Hours Complaint: Section 18(A)(1) of the Organisation of Working Time Act, 1997.

Traditionally, pre Covid Shutdown, the Complainant had worked a 30 hour week . On her return to work on the 29th June 2020 she was assured that her 30 hours would remain unaltered. This did not prove the case and her hours were cut. She received no notification of any changes to her schedules. A new Employee (Ms.P) was hired, at this time , on a fixed 39 hour week.

The Complainant stated that she was entitled to a Banded Hours arrangement of 30 hours per week, and this was not provided to her.

1:2        CA-00040059-002 -Terms of Work Information complaint.

The Complainant was employed as, primarily, a Bar / Food Service person. However, in recent times she was asked / directed to do Room Servicing /Cleaning / make Beds etc in the adjoining B&B owned by the Pub. She was never informed or consulted over this extension to her duties.

1:3      CA-00040059-003 – Unfair Dismissals Act,1977 - Constructive Dismissal

The Complainant made numerous allegations regarding the undesirable, short tempered/irritable behaviour towards her of the Respondent Owner/Manager, Mr. R . He had allowed a Chef, Mr.M, to be regularly rude and aggressive to the Complainant. Overall, the behaviour of Mr. R and his tolerance of Mr. M’s antics made the working environment completely toxic and she had been left with no option but to resign. A list of specific instances involving Mr. R and Mr M, going back over a  number of years,  were cited in her written submission.

Medical evidence was supplied that the Complainant had suffered from extreme stress and anxiety since returning Post Covid and was as a consequence, a psychiatric Hospital in patient for some time in August 2020.

1:4       Oral Evidence of the Complainant

The Oral evidence of the Complainant corroborated the above submissions. It was clear that strong words had been exchanged with Mr. R in late July over Bar Service issues. The Medical report (dated 04/03/2022) from her GP was briefly discussed – the Complainant agreed that going back to work post Covid , with all the extra regulations over Bar work, has been very stressful.

However, from an Adjudication point of view, it was unclear as to why after 20 years working she had chosen to resign on this occasion and why local efforts at resolution were unsuccessful.

The Respondent Principal, Mr. R, made a lengthy Oral Testimony supported by a written submission.  In his oral testimony he repeated his view that the Resignation was completely unwarranted and had been prompted by issues well outside of the Work context. He was questioned by the Complainant.

2:1      CA-00040059-001 - Banded Hours Complaint: Section 18(A)(1) of the Organisation of Working Time Act ,1997.

The Respondent pointed to Section 18A (2) and 3 of the OWT Act,1997 where it is stipulated that an employee notify the Employer in writing of a request for a particular Band Of Hours. – in this case an alleged 30 Hours. No such request was ever received. This is a strict requirement. Labour Court/Adjudication precedent was quoted. An Employer v A Telemarketing Company (ADJ-23194) .

Furthermore, in Oral evidence it was established that the Complainant had worked an average of 30 hours for the period from the resumption of work post Covid to her end date. Employer Records, which were contested, were exhibited.

The complaint has no basis.

2:2        CA-00040059-002 -Terms of Work Information complaint.

In Oral evidence supported by the written submission it was established that the Complainant was a Bar Person who also undertook additional ancillary duties. This had been the case since first employment in 1998. The Complainant had never raised any issues during her time at work.

There was no material change in her Duties or Terms and Conditions of Employment such as to justify any new information.

The claim has no basis.

2:3      CA-00040059-003 – Unfair Dismissals Act,1977 - Constructive Dismissal

The Respondent argued forcibly in both written submission and direct oral evidence that an extraneous interpersonal matter ( now with the Gardai and before the Courts)   involving the Respondent Principal and a close relative of the Complainant had completely negatively coloured the relationship between the Parties.

The Respondent Representative, Mr. Cummins, pointed to the accepted Legal Tests (Breach of Contract and Unreasonable Behaviours) required in a Constructive Dismissal case. Neither test was satisfied here.

The Complainant lacked specific evidence. The allegations regarding the Chef being abusive was not supported by any real evidence. The alleged “short temper and difficult manner” of the Respondent Principal, Mr. R, were again unsupported. The document provided by the Complainant which listed allegations/incidents against the Respondent was almost completely out of time and the incidents listed were taken completely out of context or simply denied.

The Complainant had always been a valued worker, had been facilitated in her maternity leaves & associated difficulties and there was absolutely no reason for her to resign. The allegations made in her letter of resignation were not based on any real evidence.

As regards the medical evidence it was observed that the Complainant had a history of nervous complaints over the years.

2:3:1 Time Limits

The Respondent pointed to the fact that the WRC Reference (24/09/2020) had been well in advance of the resignation on the 9th of October 2020. Accordingly, the complaint has to outside of the required time limits.

3:1      CA-00040059-001 - Banded Hours Complaint: Section 18(A)(1) of the Organisation of Working Time Act ,1997

From the oral Evidence regarding hours worked since Covid return in June, the supporting Time Sheets plus the lack of the required Application as required by the Act (Section 18 A) the complaint has to be seen as not well founded.

3:2        CA-00040059-002 -Terms of Work Information complaint.

Based on written documents and Oral evidence there did not seem to be any basis for this complaint. The Complainant had worked without incident for almost 22 years and the duties had remained largely unchanged. It was a Pub/Gastro House and B&B. The duties were fairly broad ranging and had always been so.

The Complaint lacked any real basis from written submission or Oral testimony to support the case.

Accordingly, it had to be seen as not well founded.

3:3      CA-00040059-003 – Unfair Dismissals Act,1977 - Constructive Dismissal

The Oral evidence was crucial here. The Complainant had worked without issue for almost 22 years. The interpersonal relationship with Mr. R, the Principal /Owner, had been good although characterised with occasional disagreements. The Complainant had, from time to time, suffered from nervous complaints. The Covid return to work in June had been stressful. The Interpersonal difficulties arising from the Incident involving her relative and the Principal, Mr. R, had certainly not helped. At the time in question June/July it was still with the Gardai.

The appearance of a new Staff member, Ms. P, as a Senior Staff member , had not improved the Complainant’s outlook. Inevitable stresses arose from working in a very busy pub during the first return to restricted opening/confusions with customers regarding Bar/Table service etc added to the situation.

However, all things considered, the two Constructive Dismissal tests of Breach of Contract and Unreasonable Behaviours have to be assessed. A Breach of Contract is normally a stopping of wages or some serious change in Terms and Condition. Neither happened.

Unreasonable Behaviour was more difficult and was disputed by the Parties. However, on balance from the written materials (the list supplied by the Complainant even if most were out of time) and especially the oral testimony, the behaviours discussed, while occasionally fraught were not of such a degree, to a reasonable outside observer, as to warrant a Resignation.

From an Adjudication point of view, it was hard to establish why a good employment relationship of some 22 years had suddenly deteriorated to a point of a Constructive Dismissal.  Twenty-two years will have ups and downs in any work relationship.  Nothing, purely in the work scenario, in the relevant time frame before the complaint was lodged at the WRC, seemed to have been a major contributory factor justifying  a resignation.

The Oral evidence focused on a single day where the Pub was busy. Covid serving restrictions were causing issues with customers which fed back into tensions between pub staff especially between those directly facing customers and kitchen/support staff. Tempers got hot but it was not, to an outside observer,  the justification for a constructive dismissal resignation.

Mr. Cummins pointed to the fact that no staff grievance had ever been formally lodged by the Complainant.

The Time Limits issue was technical, but the balance of the legal precedents has to be with the Respondent. However, the fact that the Resignation was submitted while the Complainant was under psychiatric care is also worth noting. None the less the Resignation still stood and was not withdrawn at any later stage. It was interesting that the Complainant secured alternative work on the 12th of October 2020, work that she maintained she was “very happy with” as it did not involve the “stress” of Bar work.

It is worth noting that the Oral evidence of the Complainant was clearly that he did not want the Complainant to leave. It was unclear as to why local efforts at resolution, post the first Hearing date of the 19th May 2021 , were unsuccessful. She was an employee of over 20 years’ service and was obviously valued by the Respondent business.

However, on overall balance and from all the written evidence and oral testimony the complaint for Constructive Dismissal failed to reach the standards of proof required.

Accordingly, the complaint for Constructive Dismissal fails.

Constructive Dismissal, Banded Hours, Employment Information.