Complainant

Respondent

Parties

Kar Yee  Lee

Fainne Entertainment Ltd T/A Bullet Duck Dumplings

Representatives

  Self-Represented

 Ryon Wen - General Secretary, Ireland Chinese Students And Scholars Association

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-00058070-001

03/08/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses (both Directors of the Respondent) gave evidence under affirmation. The parties were afforded the opportunity to cross examine the witnesses.

The complaint is one of Constructive Unfair Dismissal.

The complainant submitted that she had to leave her job to the conduct of her employers or others at work. The complainant submitted that she had been working at the restaurant for about three years.  She said that her employer accused her stealing from that tip pool which was untrue and no evidence with presented to her.

She submitted that her employer put her on leave for a week but that this was taken out of her annual leave, although she considered it to have been a form of suspension.

She submitted that the employer offered her two alternative employments, one located in Dundalk which she considered unreasonable due to the distance and the other was at a market stall which would involve a completely different role. She said both offers were unsuitable and at this point the company stopped engaging with her. Thereafter she tendered her resignation and considered herself to be constructively dismissed.

In evidence the complainant stated that on 20 May 2023, when she was working in a restaurant in Stoneybatter, she was asked to stop working immediately when it was claimed that she stole from the tip pool. She stated that she had to take a week off without pay and that the week had to come from her annual leave allowance in order to cover wages. She stated that she was offered two options to return to employment, neither of which were suitable. She stated that she resigned in August 2023. She submitted that she was on a weekly wage of between €500 and €550.  The complainant stated that she found part-time employment in June receiving about 226 euros per week and started a full-time job at the end of September for a wage of about €490 per week. She confirmed that she received a contract when she originally started work but was not in possession of it anymore.

The respondent submitted that the complainant was not dismissed, constructively or otherwise. The respondent submitted that there were issues relating to tips, where she was working but this had no bearing on the decision to ask the complainant to return to work as per her employment permit.

The respondent submitted that the complainant is registered to work as a commis chef in Little Mary Street but was working temporarily in another establishment in Stoneybatter run by the same directors, as floor staff. The respondent submitted that the complainant was asked to return to her original position on several occasions but refused to do so.

The respondent submitted that the complainant was offered three alternatives: to return to work for the company indicated on her employment permit (Little Mary Street); to work for one of their companies in Dundalk; or to work in one of their mobile catering trucks. The respondent submitted that the complainant indicated she was unable to work in a kitchen environment but is currently working in the kitchens of another establishment in Dun Laoghaire.

The first witness (a company Director) stated that the kitchen staff raised an issue with him regarding the lack of tips when the complainant was working. In order to test the evidence, another director (witness number 2) gave €150 as a tip on a specific night. Although the restaurant took in more than €3000 that evening, the complainant stated that there was only €150 in total in the tip pool. Arising from this the complainant was told to take a week off out of her annual leave allowance.

Before returning to work the complainant was given three options, the first was to return to the restaurant mentioned on her employment permit, the second was to work in an establishment in Dundalk or the third option was to work in one of the food trucks. The witness stated that the complainant never came back to him and that she found employment elsewhere.

Under cross examination the witness confirmed that the complainant could not come back to the establishment with the shortfall in tips (Stoneybatter) but that she would have to return to the establishment that was mentioned in her employment permit (Little Mary Street).

The second witness, another director, outlined that that the restaurant where the complainant was working in was one of several establishments with common directors. He stated that each establishment was its own registered company, and that the complainant had an employment permit with the respondent restaurant (in Little Mary Street) but not with the sister restaurant (in Stoneybatter). He noted that they were responding to a direction from the WRC Labour Inspectorate to regularise all their employees.  He clarified that this direction was given over the last two to three years.  He noted that they had a right to ask the employee to work where her employment permit indicated, and that they were simply trying to get the correct staff into the correct companies.

He noted that this complaint was a well-trodden path of trying to extort money from employers. It was noted that the complainant worked where her employment permit indicated “a long time ago”. He confirmed that the complainant was only employed in the company in Stoneybatter for about three months.

Arising from the written and oral evidence presented in relation to this complaint, it is apparent that there was no employment permit in place to enable the complainant to work in the establishment upon which the complaint centres.  Although the complainant gave evidence of having worked for the respondent for a number of years, it became apparent over the course of the evidence from both parties that she worked for the respondent directors continuously, but in a number of separate companies since 2020.  The complainant gave evidence of having a written contract of employment with the respondent employer.  No evidence was given as to her having a written contract regarding where she worked during 2023. The was no dispute that she was employed at this establishment (Stoneybatter) during 2023.  Uncontested evidence was given that the complainant only worked for three months in this second establishment.  However, there was no evidence presented that the complainant worked for the respondent on a continuous basis within 12 months of the date upon which the complaint was taken.

Section 2(1)(a) of the Unfair Dismissals Act, 1977 states as follows:

2.—(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

The complainant falls within the exclusion clause outlined at Section 2(1)(a) in that she has not demonstrated that she has 12 months continuous service with the respondent.  She does not fall within the provisions of Section 4 of the Act which deals with apprenticeship. Accordingly, the Act shall not apply to her.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant is excluded from the protections afforded by the Unfair Dismissals Act as outlined in Section 2(1)(a) of the Act.

Unfair dismissal – service requirement not met – excluded from the protections of the Act