Complainant

Respondent

Parties

Meghan  Kestler-Tobias

David Gorey

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058205-001

10/08/2023

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

CA-00058205-002

10/08/2023

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

CA-00058205-004

10/08/2023

The Complainant gave her evidence on affirmation. Her complaint was set out in detail in her complaint form, received on 10 August 2023.

Mr Gorey appeared on behalf of the Respondent and swore an affirmation. He advised he was a sole trader, and the details of the café were correct. No submission or evidence was received from the Respondent.

CA-00058205-001

It was the Complainant’s evidence that despite asking for a contract of employment she was not provided with one.

CA-00058205-002

It was the Complainant’s evidence that she raised the issue of allergens on the menu with Mr Gorey following a visit from the Food Safety Authority (FSA). After she was dismissed from her employment she submitted a complaint to the FSA on the same issue.

During her employment with the Respondent she raised the issue as to the use of the CCTV camera in the restaurant with Mr Gorey. It was her evidence there was no policy or information that outline their purpose, retention or who had access to the cameras. She gave evidence that the cameras were mounted in the restaurant and moved around to follow her at work. She gave one example that she was talking to the chef, and she could hear the camera moving around to point in her direction. The Complainant felt the Respondent was relying on the CCTV to monitor the staff in the workplace.

The Complainant said she raised this with Mr Gorey on 5 August 2023 just before she was dismissed to which he responded by saying he would get to it. She had previously raised the issue in the staff meeting.

On 9 August 2023, the date she was dismissed, she opened the café but deliberately decided not to turn on the CCTV as she was tired of raising the issue with Mr Gorey. She was told by the Respondent not to turn off the CCTV cameras. It was then she was accused of standing around on the job by the Respondent and told she was the subject of complaints by her colleagues. The Complainant was dismissed for gross misconduct and told to leave the premises.

In terms of financial loss the Complainant stated she earned €14.50 per hour working 30 hours with the Respondent. She obtained new employment on 11 September 2023 earning €13 per hour initially which was increased to €14 per hour in December 2023. She works 30 hours during the high season but now is working 10-15 hours.

CA-00058205-004

It was the Complainant’s evidence that despite asking for a contract of employment at the time of her promotion. It was her evidence that she asked Mr Gorey for a contract.

CA-00058205-001

The Respondent accepted that a contract of employment was not provided to the Complainant.

CA-00058205-002

It was theRespondent’s evidence that he did dismiss the Complainant for gross misconduct on 9 August 2023 because she turned off the CCTV camera on the premise, took pictures of a roaster that was yet to finalised and sent them to the other staff, he received two complaints from staff about the Complainant.

It was his evidence that he would check the cameras while he was at his other business to see if the café was busy or not. Based on how busy the café was he would call the Complainant and instruct her to leave staff go home early as they were not needed.

No documentary evidence was relied upon by the Respondent.

CA-00058205-004

The Respondent accepted that an updated contract of employment was not provided to the Complainant when she was promoted.

CA-00058205-001

Section 3 (4) of the Act states-

“A statement furnished by an employer shall be signed and dated by or on behalf of the employer.”

I find the complaint is well founded in light of the Respondent’s acceptance a contract of employment was not provided to the Complainant.

As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.

CA-00058205-002

The Complainant’s asserts that she was unfairly dismissed as an act of penalisation for having made  protected disclosures in the workplace. 

Section 5 of the Protected Disclosures Act, 2014 provides as follows:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

In the High Court case ofClarke v CGI Food Services Limited and CGI Holding Limited [2020]IEHC 368, Humphreys J, (31 July 2020) held on the nature of the complaints:,

“The plaintiff’s complaints were sufficiently informational in nature and not merely allegations unharnessed from any factual point”

Penalisation

Section 3 of the Protected Disclosures Act, 2014, at relevant part provides as follows:

"penalisation" means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

There was no dispute that the reason for the Complainant’s dismissal was on the grounds she failed to follow the Respondent’s instructions to turn on the CCTV cameras in the café, her workplace. The respondent did not dispute that she previously raised these issues during staff meetings or to him in text on 5 August 2023. It is also important to note that the Respondent did not raise any issue with the

CA-00058205-004

The Complainant’s evidence was undisputed. Consequently, I find that she was not provided with a contact of employment to reflect her change in position from Barista to Supervisor by the Respondent.

As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.

CA-00058205-001

I find the complaint is well founded. Having regard for the Complainant’s length of service with the Respondent, I am making an award of €435 equalitvant of one week’s wages as being just and equitable in the circumstances.

CA-00058205-002

I find the complaint is well founded. Having regard to the Complainant’s financial loss I am awarding her €3,500 as being just and equitable in the circumstances.

CA-00058205-004

I find the complaint is well founded. Having regard for the Complainant’s length of service with the Respondent, I am making an award of €435 equalitvant of one week’s wages as being just and equitable in the circumstances.

Protected Disclosure- Unfair Dismissal