Complainant

Respondent

Parties

Paula  Hoare

The Inn Scene Limited t/a The Jockeys

Representatives

Conor Macguill Conor MacGuill Solicitors

 No appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039541-001

02/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00039541-002

02/09/2020

The complainant commenced employment on 28 July 2017 as a catering assistant.  At that time the restaurant was owned and run by SK and AK.  The complainant worked approximately 34 hours per week at the rate of €10 per hour. 

On 05 June 2019 the complainant received a letter from the owners stating they had entered into a contract for the sale of the business.  The letter stated the sale was expected to be completed on 10 July 2019 and agreement had been secured with the purchaser that the complainant’s employment would continue from that date under the same terms and conditions as her current contract of employment.

The complainant asserts that the new owners changed her terms and conditions, including downgrading her from catering assistant to kitchen porter and changed her hours to include split shifts.  The complainant alleges the working atmosphere was toxic and due to the conduct of the respondent she had to resign.  The complainant alleges that during her notice period she was dismissed by the head chef.

Her employment terminated on 03 August 2020.  The complainant submitted her complaint to the Workplace Relations Commission on 02 September 2020. 

At the hearing the complainant presented her complaint under section 8 of the Unfair Dismissals Act and withdrew the complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 legislation.

The complainant commenced employment as a kitchen assistant on 28 July 2017.  She was paid €10 per hour and normally worked 34 hours per week.  The work environment was good and in time she was promoted to Commis Chef working 08.30 to 16.00

In July 2019 the business was sold to the respondent.  The complainant was notified, in writing, by the previous owners, that agreement had been secured with the respondent to continue her employment on the same terms and conditions.  A copy of that letter was provided with the complaint form.

The complainant claims the respondent changed her terms and conditions.  She was given a new contract stating she was a Kitchen Porter; she would be required to work split shifts and she was on trial for six weeks.  When the complainant raised complaints about the changes, she alleges her complaints were not properly considered and were not resolved.  Due to the toxic atmosphere and the conduct of the respondent the complainant felt she could no longer work there.  Having notified the Manager of her decision to leave she was working out her notice period.  However, the complainant alleges the Head Chef dismissed her the following day.  Her claim was to be she was constructively dismissed due to the conduct of the respondent but then during her notice period the Head Chef told her to leave her place of work.  The complainant claims she was dismissed on 03 August 2020.

Oral Evidence

In her oral evidence the complainant stated that she was presented with a new contract by the respondent and was not permitted time to read this contract.  Her post was changed to Kitchen Porter, and she was to be on trial for six weeks.  The complainant stated that she was afraid she would lose her job if she did not sign the new contract.  The complainant made several complaints to the General Manager and Head Chef, but these were unresolved.

The complainant stated that the work environment changed in 2020 after the first lockdown arising from the Covid-19 health restrictions.  A kitchen porter and a chef had left the restaurant during the lockdown.  When the complainant returned to work, she was required to work part of her time as a kitchen porter on washup duties.  The complainant made a complaint to the General Manager explaining that she was not happy about being taken off the baking section and put on washup as a kitchen porter. 

The General Manager arranged to meet with the complainant and the Head Chef on Saturday, 01 August 2020.  The complainant stated that during the meeting she was shouted at by the Head Chef and called a liar.  Nothing was resolved. The complainant left the meeting as she felt she was getting nowhere.  The complainant went to work the following day, Sunday, but after four hours work in what she described as a toxic atmosphere she felt she could no longer work there and there was no point in making another complaint.

The complainant informed the General Manager she could not work in that environment and gave him a weeks’ notice.  On Monday 03 August 2020, the complainant informed the Head Chef that she was leaving at the end of the week.  The complainant then saw her roster for the week.  She was rostered to work a split shift on Thursday from 08.30 to 14.00 on bakery and the from 17.00 to finish on washup. She informed the Head Chef she would work one shift or the other but not both.  The complainant stated that the Head Chef then started shouting at her in front of other staff, waving the roster about and telling her she was doing her a favour.  The complainant stated she was then told to finish her work and leave.

On Wednesday 05 August 2020 the General Manager telephoned the complainant to hear her side of what happened.  The complainant asked to meet with HR and or the new owners.  The General Manager refused these requests.  The complainant stated that the Manager refused to pay her what she was entitled to until she gave him her notice in writing.  The complainant stated she contacted the wage office, and the payments were sorted.  The complainant claims she was unfairly dismissed.

There was no appearance by or on behalf of the respondent at the hearing on 18 February 2022.

 At the hearing held on 26 July 2021 the respondent was represented by the company secretary, GM.  He had provided a written statement, dated 22 July 2021, in which he set out a version of the events that he stated led to the voluntary termination of the complainant’s employment on 03 August 2020.  GM was not present during these events.  By e-mail dated 18 August 2021 GM informed the Workplace Relations Commission that he was no longer the representative for the respondent as he had stepped down as secretary the week before. In the e-mail he stated that the respondent’s General Manager, PG, would represent the respondent from that point.

The General Manager of the respondent did not attend the hearing on 18 February 2022.  Having established that the respondent was on notice of the hearing but would not be represented I proceeded to hear the complainant’s sworn evidence.

CA-00039541-001

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

The complainant submitted her complaint to the Workplace Relations Commission on 02 September 2020.  At the time she submitted the complaint she was unrepresented, and she filled in the complaint form herself.  On the form she marked the box that stated she had to leave her job due to the conduct of her employer or others at work.  In a claim for constructive dismissal the burden of proof is on the complainant.  However, although the complainant makes the case that the conduct of her employer was the reason she gave notice of her intention to resign she also makes the case that while working out her notice period her employment was terminated by the employer.  As there was no appearance by or on behalf of the respondent at the hearing on 18 February 2022, I heard the complainant’s sworn testimony taking note of all the circumstances described by her.

The Act provides at section 6 as follows:

6.— (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.

Based on the uncontested evidence of the complainant I must decide if she was dismissed or if she resigned due to the conduct of the respondent employer.

The complainant commenced employment as a catering assistant on 28 July 2017.  She was employed by the previous owners of the restaurant trading as The Jockeys.  She was promoted to Commis Chef and was working approximately 34 hours per week.  The business was sold in July 2019 to the respondent.

The complainant provided me with a copy of a letter she received from the previous owners at the time of the sale of the business in which it was stated that her employment would continue with the new employer on the same terms and conditions as her original contract.  The complainant gave sworn testimony that her employment with the new owners was to continue on the same terms and conditions. The complainant was a credible witness and I accept her uncontested testimony that she expected to continue working with the new employer on her existing terms and conditions.

The complainant explained how the respondent presented her with a new contract in which her role was downgraded to that of kitchen porter and how different shift arrangements, including split shifts were introduced.  In addition, the complainant was to work on a trial basis for six weeks.  The complainant stated that she was told to sign the new contract and was not permitted time to read it, take it away to consider the proposed changes or get advice about signing the new contract.  The complainant signed the new contract under pressure and in fear she would lose her job.  Subsequently she made several complaints to the General Manager.  The complainant stated that none of her complaints were resolved. 

Following the first lockdown in 2020 the complainant returned to work, but her employment conditions deteriorated.  When she returned two of the staff had left and the kitchen was short a chef and a kitchen porter.  The complainant was assigned to work part of her shifts on wash up duty and she was assigned split shifts.  She again made a complaint to the General Manager.  He arranged a meeting with the complainant, the Head Chef and himself for Saturday 01 August 2020.  The complainant stated during that meeting she was shouted at by the Head Chef and as nothing was resolved she left the meeting and went back to work.  The complainant described the working atmosphere the following day as toxic, and she decided to resign as her complaints had not been resolved.  The complainant informed the General Manager of her decision and gave one weeks’ notice. 

The complainant attended work the following day, Monday 03 August 2020.  She saw that she was rostered to work the following Thursday on a split shift, 08.30 to 14.00 on bakery and then 17.00 to finish on washup.  She informed the Head Chef she would work one or the other but not both.  The complainant stated that the Head Chef began shouting at her in front of other staff.  The Head Chef told her to finish work and leave.  The complainant understood her employment was terminated.

Two days later the General Manager telephoned the complainant to discuss what had happened on Monday 03 August 2020.  The complainant stated that she described what took place and how she was told to leave.  The complainant asked if she could meet with HR or the new owners but both requests were refused. 

I have considered carefully the complaint, the documents provided by the complainant and her sworn testimony.  I am satisfied that the complainant established that following the transfer of the business from the previous owners to the respondent her terms and conditions of employment were changed, and she signed a contract under pressure without the opportunity to consider or take advice on the new terms and conditions.

I am satisfied, based on the uncontested testimony of the complainant, that she raised several complaints with the General Manager concerning her working conditions and these complaints were unresolved.  The complainant was a credible witness and I accept her testimony that she informed the General Manager of her intention to resign, giving one weeks’ notice, because she could no longer accept the behaviour of the Head Chef towards her and her complaints being unresolved.

I am satisfied, based on the uncontested testimony of the complainant, that during her notice period the complainant was dismissed on Monday 03 August 2020 when she was told to leave her place of work.

I am satisfied that the complainant has established that the behaviour of the employer was unreasonable and was the cause of her notifying the General Manager, on 02 August 2020, of her intention to leave.  The complainant was prepared to work out her notice period, however, I am satisfied her employment was terminated on 03 August 2020.  I find the complainant was unfairly dismissed on 03 August 2020.

Redress

Section 7 of the Act provides:

Redress for unfair dismissal.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The complainant sought compensation for her unfair dismissal.  The complainant incurred financial loss due to her unfair dismissal.  Financial loss is defined in the Act as:

““financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.”

In considering the financial loss incurred I am required by section 7 (2) (c) of the Act to take account of “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”

The complainant provided documentary evidence of job applications made by her in order to mitigate her loss.  She provided evidence of applications to ten different employers.  She also provided me with a very positive reference from the previous owner.  Due to the health and safety restrictions arising from the pandemic it proved very difficult to obtain employment other than short-term employment.  The complainant did obtain two temporary contracts working 20 hours per week at the rate of €11 per hour.  Arising from her unfair dismissal the complainant is at the loss of a permanent post.  Having regard to all the circumstances I determine it is just and equitable to award the complainant compensation of €18,000.

CA-00039541-002

 Complaint submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

This complaint was withdrawn at the hearing.

CA-00039541-001

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

Having considered carefully the complaint, the submission and uncontested testimony of the complainant I am satisfied that the complainant has established that the behaviour of the employer was unreasonable and was the cause of her notifying the General Manager, on 02 August 2020, of her intention to leave.  The complainant was prepared to work out her notice period, however, I am satisfied her employment was terminated on 03 August 2020 when she was told to leave her place of work.  I find the complainant was unfairly dismissed on 03 August 2020.

Having regard to all the circumstances I determine it is just and equitable to award the complainant compensation of €18,000.

CA-00039541-002

 Complaint submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

This complaint was withdrawn at the hearing.

Unfair dismissal