Complainant

Respondent

Parties

Breda  Slevin

King House Tea Rooms

Complainant

Respondent

Anonymised Parties

Representatives

  The claimant represented herself

Shane O'Dowd O'Dowd Solicitors LLP

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-00050855-001

25/05/2022

The complainant was employed as a waitress from the 17thDec 2020 to the 21stDec 2021.The complainant submitted that she was unfairly dismissed for alleged gross misconduct on the 21st.Dec. 2021.The complainant denied that any meetings took place in relation to her performance and had never been afforded an opportunity to respond to any complaints.

The respondent denied the complaint of unfair dismissal and asserted that the complainant was dismissed as a result of ongoing performance issues and breaches of confidentiality in the workplace.

The respondent submitted that the complainant was employed as a waitress/ server and commenced in Dec. 2020 It was submitted that over the course of her employment the complainant had several issues in relation to her till use and her ability to make coffee. It was submitted that efforts were made to resolve these issues on an informal basis and through training and interaction throughout the period.

It was submitted that following an ongoing issue with the use of the till, incorrect charging of customers and following informal interventions by the respondent – hereafter referred to as Ms. X -   on several occasions, a formal meeting was arranged for 23rd.Nov regarding incorrect use of the till and a verbal warning was issued. It was submitted that a letter confirming this was handed to the complainant on the 23rd.Nov.2021.

It was submitted that the issues were raised with other staff who agreed to be more careful and according to Ms. X’s representative no further issues arose with these employees.

It was submitted that no improvement ensued and there were ongoing issues of under and overcharging. It was submitted that the complainant made statements to customers to the effect that Ms. X was out sick, possibly with Covid and that they would be safer not to enter the café. It was contended that this was a serious breach of trust and that the disclosure of confidential information- which was factually incorrect, was a substantial undermining of the relationship and significantly damaging to the business.

It was submitted that arising from this a meeting was held on the 7th.December 2021 resulting in a decision of the employer to terminate the claimant’s employment. It was submitted that the disclosure of personal medical information was entirely unacceptable and that the employer did not have the time to continue overseeing staff where the complainant was not prepared to take more care.

It was submitted that at the   meeting on the 7th.Dec. the claimant’s   contract was terminated with effect from the 21st.Dec. 2021.

It was accepted by the respondent that the invitations to attend the meetings were not notified in writing to the claimant – it was submitted that the respondent was a small employer and no documentation was sent by letter during the employment.

It was submitted that despite several items of correspondence being sent to the complainant that she declined to provide evidence of her financial loss. It was contended that the claimant took up employment on the 6th.January 2022 and that consequently loss was restricted to that period of time.

It was submitted that it was incumbent on the claimant to set out details of the loss incurred and that inferences should be drawn from her failure to do so.

 It was asserted that the claimant was not entitled to any relief.

Summary of Pertinent Evidence of the Respondent

In her direct evidence Ms. X said that the docket that were being submitted into evidence were raised at the time with the complainant in September/October. The witness said she was told by customers that the complainant had said she may have had Covid.

With respect to the painkiller issue and the use of till money for the purchase of same, Ms. X said that she told the complainant that she could not take money from the till for painkillers. The employer confirmed that they accepted that the matter was resolved between them on the day it happened.

Under cross examination, the complainant asked Ms. X why she was singled out with respect to the online review about the quality of the coffee served in the café. The witness responded that when she spoke to the complainant about the matter, the complainant accepted it was her – ie the complainant who had served it. The complainant witness was asked if she could prove that the complainant had said Covid 19 to the customers.

In summing up the respondent’s representative asserted that the complainant had failed to recognise the significance of disclosing personal information to third parties. It was contended that even suggesting Covid was an inappropriate comment. While it was accepted that the interactions between the complainant and the employer were informal and that procedures were not followed, it was argued that the dismissal was substantively justified. It was submitted that the maximum loss incurred was 11 days and no further compensation was warranted.

In her complaint to the WRC, the complainant summarised her grievances as follows :

The complainant asserted that the reasons given for her dismissal were 1) difficulties with the till – the complainant submitted that she had addressed the problem and repaid for any undercharging and 2) Breach of confidentiality. The claimant submitted that the respondent stated that she disclosed confidential information to customers about the state of the respondent’s health in Dec. 2021.The complainant asserted that the respondent attended work with symptoms of Covid without reference to the staff. The complainant alleged that she was unable to raise the matter with the respondent because of the manner in which she was treated by her.  The complainant asserted that in order to safeguard elderly customers on the 2nd.Dec. 2021 when the respondent did not attend work, she-  i.e the complainant told the customers that the respondent – Ms. X was at home with a cold. The complainant texted Ms. X about her concerns and Ms. X responded that she had tested negative for Covid. The complainant set out the ensuing exchanges between the parties in relation to Covid. The following morning the complainant alleged that she had cold like symptoms and notified Ms. X that she would be going for a PCR test. The test was negative and the complainant returned to work a few days later .

The complainant asserted that despite Ms. X’ s assertions that meetings had taken place about her performance, no meeting took place during the course of her employment. The complainant asserted that she was denied any opportunity to respond to complaints or have someone attend to witness any comments made to her. The complainant asserted that Ms. X made comments to her in the workplace in front of customers – which she found to be humiliating.

The complainant set out her account of an incident regarding the removal of money from the till to purchase pain relief medication – the complainant said this was a regular occurrence by all staff members. The complainant asserted that arising from the headache she suffered she ended up n hospital for over a week – resulting in being chastised by Ms. X for her absence from work.

The complainant referenced a misuse of the coffee machine and asserted that Ms. X took the matter up with her in front of customers. The complainant asserted that there were other people also  working  that day – no meeting was held and the complainant submitted that she was the staff member blamed for the incident. On the 23rd.November the complainant was issued with a warning without any meeting or discussion.

At the hearing the complainant stated that she was there to seek justice for her unfair dismissal and for being bullied and harassed in the workplace. The claimant said that Ms.X’s behaviour towards her changed drastically approx. 2 weeks after the restaurant re-opened following the Covid lockdown. The complainant said she was not furnished with a contract of employment until over 11 months after she commenced employment and she submitted that this was in breach of the Terms of Employment(Information) Act 1994.The complainant said that in summary , she wanted it on record that her dismissal was unfair and she was seeking compensation for the stress caused by the bullying of her by Ms. X and compensation for loss of earnings.

Summary of Pertinent Evidence of the Complainant

Under cross examination the complainant asserted that the dockets being submitted into evidence by the respondent were unclear and that there was no way of knowing or proof of the dockets being the claimant’s dockets. The complainant asserted that there was no indication as to who was responsible at the time. The complainant said that she referred to a cold when talking to the elderly customers and that it was a matter for them to make their mind up. The complainant stated that she assumed she could take money from the till for painkillers as had happened previously – it was a work-related issue and she asserted that she reimbursed the money to Ms. X. The complainant said the matter was resolved between them on the day.

As regards the interaction with Ms. X re. the coffee on line review the complainant said there was no protocol followed and that she was made a show of by Ms. X.

The complainant reiterated that the respondent had presented no proof to demonstrate that the till deficits were attributable to her. She stated that no procedure was followed on the day she was dismissed – she was asked to sit down before the shift ended and was told her employment was being terminated – the complainant said that this was not a meeting. The complainant denied receiving the letter of confirmation of a warning dated the 23rd.Nov. 2021.

It was put to the complainant that there had been 4 X meetings about her performance – the complainant said she was never given a warning - she had been approached about the till mistakes and had rectified them. It was put to her that Ms. X had gone through hundreds of receipts with her – the witness replied there were 1oo’s of  receipts but no names  on them to identify the staff member . The text messages the claimant had submitted   into evidence were referenced – the complainant said that Ms. X chastised her in the café and that she chastised her with respect to a return to work form.

The complainant said Ms. X asked her to complete a return to work form and that she gave out to her as she could not trust that the complainant would be there to provide cover for holiday time.

In summing up the complainant asserted that the dismissal was unfair and unjust and she denied that the receipts that were submitted into evidence were to do with her. The complainant submitted that protocols should have been followed and she could have had her say. The complainant reiterated that the dismissal was unfair and that bullying and harassment were what led to her dismissal.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. On the basis of the evidence presented by the parties and the submissions made I have concluded that the claimant was unfairly dismissed. Her dismissal was effected without regard to the provisions of S.I.146/2000 and without regard to the company’s disciplinary procedure. The employer failed to observe the terms of the escalating procedure set out in the company handbook, the employer failed to give the claimant written notice of disciplinary meetings, the employer failed to carry out a proper investigation into the allegations against the claimant and the respondent failed to give the claimant a right of appeal of her dismissal. The claimant was not afforded an opportunity to respond to the allegations against her and was not afforded her rights under natural justice.

In determining compensation I am taking account that the claimant acted expeditiously to mitigate her loss - her employment having terminated on the 21st.Dec. 2022 - and took up employment on the 6th.January 2022.

I require the respondent to pay the claimant €948.96 compensation.