Worker

Employer

Anonymised Parties

Deli worker

Food and Drink Provider

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

IR-SC-00002623

14/05/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted fairly, albeit in an informal setting.

The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969. As the within matter is a dispute between parties and brought before the WRC using the said Industrial Relations Acts the recommendation is anonymised.

Industrial Relations disputes are primarily heard on the basis of factual and/or submissions as to fact provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant evidence provided by the other side.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 14th of May 2024.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. 

I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made her own case. The Complainant presented no corroborative evidence in terms of witnesses or documentation. The Complainant primarily relied on the comprehensive submission/narrative set out on the workplace relations complaint form. The Complainant alleges that she was constructively dismissed, and that this dismissal happened three months after the commencement of her employment.

The Complainant set out her written case as follows:

“For ease of writing/reference the following applies: Mrs T is Owner/Mother, Mr J is owner/Son, Mrs C is wife of Mr J..

On my first day when showing me around the premises, C showed me the steep concrete steps, flanked by a wall on either side and a handrail on one side, that lead to the basement of the shop/deli where the stocks/freezers/coldroom/etc. is located. C told me that any boxes of frozen chips could be kicked down the steps because they are too heavy to carry but not to let T see me doing that or I would be in big trouble. During my first week I had noticed that my other coworkers had bottles of minerals (bought from the shop) and C herself had coffee and were drinking from these during the morning and daytime. I got a coffee (and paid for it) and had it beside me at the sink and was drinking from it whilst working. C said I should not let T see me drinking coffee as I would get in big trouble with T. Another day, I served a young child some coleslaw. I placed the coleslaw in a tub, weighed the item for pricing and then put the tub in a small plastic sweet bag. C instructed me not to put tubs in a sweet bag again because T would kill me. On another occasion I served a child who asked for €1 worth of loose marshmallows. Due to the bulky nature of the marshmallows, I used a small paper bag from the Deli counter instead of the small plastic sweet bag as the paper deli bag was slightly bigger. After the child left, C said not to use the deli/paper bags for sweets because James would kill me. One Sunday I served a customer a wrap from the Deli. When I handed the item to the customer she said that she assumed it would be toasted. C was working with me that day and she told the customer that unless they specifically asked for the wrap to be toasted it would be made cold. She told the customer that it could be placed in the oven as is (wrapped) and heated that way and the customer agreed to this. After a few minutes I took the hot wrap from the oven using a tongs as it was very hot I placed it in a lined deli bag and handed it to the customer. When the customer left C asked why I used a bag from the deli and said that T is 'definitely going to kill you now' for using a bag.

The pattern of T or J going to kill me continued for many weeks. There is a dispenser unit for a roll of blue disposable hand-paper located beside the deli sink. As per HACCP instructions, I would always use this to dry my hands. As I was constantly washing up (to be explained later). I was drying my hands more often that any other staff because I would mostly only get one or two items scrubbed when I would be instructed to serve a customer. C would often say that I was 'some woman for using up the blue roll' or that there was no blue roll left because I had it 'all used up' and James would have to order more. This became a daily comment. As time went on the blue roll was not replaced unless I replaced it. I became weary of this and started to place a dry tea towel on top of the dispenser to use to dry my hands but when I would leave the area to serve a customer the tea towel would be used to dry dishes or wipe the deli area and would not be replaced. I would also always use the blue roll to wipe the dining tables in the lounge/dining area after spraying with antibacterial cleaner. On many occasions I was told by a co-worker not to use the blue roll but rather to use a dishcloth instead and that I 'should know this'. I never used anything other than blue roll to dry tables due to contamination issues and continued to use the blue roll even after being instructed to use a dishcloth. During my first break (30 minutes) I would have my lunch in the lounge. I would always turn on the TV as I did not like to either sit in a silent room nor be sat beside customers who may be having a conversation. Oftentimes J and/or other members of the family would have business meetings in the Lounge and I would turn on the TV to have some background noise to allow some sort of privacy both for myself as well as others. On one break in February (during the Welsh Open Snooker Tournament) I was on my break and had turned on the TV to follow the snooker. There was no-one else in the Lounge. After about 15 minutes I went out to the shop to buy a second cup of coffee. When I returned, Teresa was sitting at a table having something to eat but had taken the TV remote from my table, turned off the TV and placed the remote back behind the bar. She said to me that I could turn back on the TV if I really wanted to but the TV annoyed her. This made me feel as if I was being tested, intimidated and unconsidered. I continued my break in silence whilst Teresa read a newspaper.

During my first week, one morning T was on the shop floor and announced that the main till was down €50 from the previous week and that this was happening all the time. She was very vexed and agitated. As I was not employed previously I was not concerned on a personal level but was shocked that T would be so public about her concerns. She did not inform whether the shortfall had been explained/found at any later time. On Thursday evening, April 11th, I was working 9am to 5pm and was on my own in the shop between 4pm and 5pm with James on the premises too. T came in during this hour and began to check the takings on the tills. During this time she asked if the shop had been busy during the day. I said that it was busy through the whole day. She made a comment saying that it couldn't have been so busy that someone couldn't have had the time to gather the credit card receipts and add them up instead of her doing it all the time. I told her that I had not been shown or informed that I could do this and would gladly do it in the future if it would help her out. She then said that the main till was short €100. I remarked that this was a large and even amount and said that the ice-cream man was paid €100 from the till earlier. She corrected me saying that he had been paid €99.95 and that she had counted this payment. She had J remove the entire till roll for the day and read through it. The following morning, Friday April 12, I was working in the shop/deli with C and one other co-worker. T announced on the shop floor that there was €70 short in the main till yesterday evening. I did not ask how she found the €30 difference from the €100 shortfall the evening before as I felt this would not have been appreciated by T. T was white-faced and was visibly shaking with temper. She said that this was happening all of the time. She said that someone was either 'entering wrong amounts' or 'giving back the wrong change' or 'something else'. She said that the accountant will not be happy and that there should be a note placed in the till to explain a shortfall. After this comment by T, C turned around to me and said ''E , now don't you know to put a note in the till''. C did not address my co-worker. I was shocked and felt implicated in the reason for the shortfall. I replied that I knew this already. Shortly after this I went on my break and I phoned my Husband as I was very upset and crying. I felt that I had been singled out, publicly humiliated and wronged. I did not feel comfortable or confident enough to address the situation.

During February or March T had been away on a short holiday and had returned back to the shop and showed myself and others in the shop her photographs from her trip. She then went downstairs to the basement. A short time later C came into the deli and said that T was not happy because 'nothing had been done and we were all in trouble'. Two or three weeks into my employment C asked me if I had grated the cheese the day beforehand. I replied that I had. She said that T was cross because the cheese wasn't grated the way she likes it to be done. I showed C how I steadied the grater on the counter and grated the cheese. C said that T wanted longer strands of cheese because it made for nicer sandwiches. She said that because I wasn't one of the 'young ones' that she felt I shouldn't have to be told how to grate cheese. She showed me to hold the block of cheese up in the air and use the full length of the grater to get longer strands. As a block of cheese is 2.5kg in weight there is a lot of cheese to be grated and has to be cut into shorter blocks. It is time consuming and leads to strain on the forearms. As my co-workers would mostly busy themselves with other duties I would mostly spend most of the morning washing up various items and scrubbing the oven trays which were in constant use. Between scrubbing and grating cheese in the air I developed RPI (repetitive strain injury) in my right forearm overtime. This was confirmed by my GP on April 30th. On Thursday, April 4th, I was making three wraps for one customer. These wraps were all fully filled with salad. On making the third wrap I cut the wrap in two (as I had the previous two wraps). I wrapped them in deli paper and gave them to the customer. As I was cleaning my area T stepped in beside me saying that there was too much waste and it should be going into the customer's mouth. I tried to explain that the waste was from the making of 3 fully filled wraps but T cut my sentence short. The following morning when I arrived at work T was already in the Deli. I said good morning and she immediately said to look at all the sandwiches she had made. She had made a number of trays of sandwiches for a funeral group expected later that day. She said that she had 'made all those sandwiches' and there was 'absolutely no waste' and that I should see this and that she was 'the best' at making sandwiches. She only addressed myself and none of the other staff. On Friday, March 29th, I worked 8:30am to 4:30pm. For my last half hour (4pm to 4:30pm) I worked with two co-workers, both school-going teenagers. One of the teenagers was new and was learning their duties. The two teenager co-workers were inside the Deli area and I was cleaning the shelves outside of the deli area. This area is at the end of the shop premises. Te was checking the till takings at the main till which is located beside the customer door/entrance of the shop. The customer did not walk down through the shop but stood at the main till just inside the door. Before myself or either of my teenage co-workers could offer to assist the customer at the other till T began to verbally criticise and humiliate myself and my co-workers to the customer. T said to the customer ''look at all them down there doing nothing and I'm left here to do all this with the till and serve you as well. They just stand around and let me do all the work''. The customer appeared to be uneasy and did not reply. The customer bought cigarettes and left without comment. Any time I tried to use my initiative or do something in a different way to anyone else I was told ''we don't do that here''. When I buttered the outside of bread for a toasted sandwich, gave salt and pepper to a customer eating toasted sandwiches in the lounge, used the tare button on the scales (instead of turning off and on the power to the weighing scales), and used the number (instead of the arrows) on the Pay Zone machine (just some examples) I was told ''we don't do that here''.

My first Sunday to work was February 25th. I had not been rostered for this day by J but asked J if I could have Wednesday February 21st off to attend a funeral and could I work on Sunday 25th instead as this would also be an opportunity to learn how to use the oven and work the deli on a Sunday. I was keen to work on a Sunday to learn the oven (as weekdays were too busy to be shown) but had not yet been rostered to do so. C worked with me on Sunday 25th and showed me how the oven worked and how to carry out the duties on a Sunday. I was not rostered on a Sunday by J for another 5 weeks until Sunday 31st March. On many occasions during these 5 weeks C said to me that she would get James to roster me on a Sunday because she and another particular member of staff ''would like a social life''.

On commencing my employment, J told me that staff were to take one week's holiday by the end of April, two weeks during the Summer and one week during the latter quarter of the year. He said that there would be a calendar on the wall that would show the holidays booked. A 2024 calendar was not placed on the wall until sometime in late March and there were stickers on the months of July and August. I asked, in general in the shop, about holidays and C said that July and August were gone but to check with J as only he marks the holidays on the calendar. In March I looked for one week in April (commencing on Monday 15th) and J said that this 'should be ok'. As April approached I had not been given confirmation by J nor was it marked on the calendar. I checked again with J in the last week of March and he told me that it was fine. My week was still not marked on the calendar so I wrote it in myself. What I was unaware of was the week commencing Monday 01st April was booked by another staff member and confirmed by J. I was unaware as it was not written on the calendar. I mentioned this to J and asked what days were available to me for further holidays. J said to decide on a date(s) and then ask him if it was available or not.

On April 22nd I worked 9am to 5pm. At 4pm I was the only staff member working with J. I began grating cheese around 4:15pm whilst there were no customers in the shop. At around 4:30pm a customer ordered two toasted sandwiches, a regular sandwich and a portion of chips to have in the Lounge. I completed the order and served the customer at about 4:45pm. I returned to the shop area and continued grating cheese. J checked with me to confirm that I was finishing at 5pm. I said that was correct but I was happy to continue grating the cheese and that also I had to wipe out the oven as it had cooled after the cleaning programme. J said to leave it at 5pm and to go home. I said that I would be happy to have the oven wiped and cleaned and didn't mind staying to finish grating the cheese. Again, J said to go home at 5pm as he and the evening staff would take care of the oven and the cheese. The evening member of staff was rostered to come in at 5pm. I said that I would do the oven first and have that done as it only took a few minutes. J checked with me that all was left to do was just the cheese to be grated and I confirmed this. He thanked me and said again that the evening person would do the cheese. I finished the oven duties. I placed a lid over the cheese I had already grated and I wrapped the remaining block of cheese in cling film. I cleaned the area I was working at and left work at 5pm. The following morning, Tuesday April 23rd, I worked 8am until 4pm. T came into the shop at around 10am. I was washing up in the deli area. She immediately addressed me angrily in front of my two co-workers. She said that she had come into the shop shortly after 5pm the previous evening and found grated cheese with a lid on it and the rest of the block of cheese covered up and all left on the counter. She asked if I had done this. I began to explain that J had told me to go home at 5pm as rostered and that the evening person would finish grating the cheese. However, T cut me short and did not allow me to give my explanation. She lost her temper with me and berated me on the shop floor in front of two co-workers. She said that she didn't care what J told me and that I should never leave work undone. She said that if I had to stay an extra 10 or 15 minutes to finish something then I should do that and come in late the following day. I again tried to explain that J had told me to go at 5pm and that he said that the evening member of staff (I will refer to as 'Sam', not the person's real name) would do the cheese. T said that 'Sam' was useless and didn't know how to grate cheese or was much good at anything else. She said that 'Sam' wouldn't be working in the shop if she had her way. T continued to criticise 'Sam' personally and also criticise their work. She recanted a conversation she had with 'Sam' the previous evening which was of a critical and negative manner. 'Sam' is a school-going teenager and I was not comfortable with T's outburst and was not comfortable with being drawn into a situation where another member of staff (let alone a child) be disrespected in their absence. I did not reply to her. She reverted back to berating myself and said that I should never not do my work. She walked away and I continued my work until 4pm. I was rostered to have a paid day off the following day (Wednesday 24th) and decided that I would take this opportunity to think about the position I was in with Lounge (Shop/Deli). During my time in this employment I have felt bullied, intimidated, disrespected, belittled and publicly humiliated.

On occasion at home I have felt anxious and upset at the thoughts of yet another day in this toxic working environment. I had no grievance procedure to avail of as the owner/managers of the workplace were family and I had no contract to rely on for information or support. I felt I could no longer retain my employment under such toxic conditions as it was affecting my physical and mental health.

I decided, after spending my day off contemplating, that I could no longer work under such conditions. At approximately 7:30 pm I went to the shop and met J outside in the car park. He said hello and asked if I was ok. I replied that not everything was ok and that I would not be coming back. I handed him the key to the side gate as I said this. J replied ''ok''. I said that I could no longer work with his Mother. J replied ''ok''. I said that an incident had occurred the previous morning in the shop and I asked Js if he was aware of what had happened. He replied ''no''. I told him that basically his Mother had berated me on the shop floor for doing what he had told me to do. I asked if he had remembered telling me to leave the cheese and to go home and that 'Sam' would do the cheese. He said he did remember. I told him that his mother undermined him and berated me in front of the other staff. J replied ''ok''. I said that I wished himself and C and L (his brother) and his wife K the very best of luck but that I would not be returning. J replied ''ok'' and added that he would be in contact with his accountant and would be in touch. I patted J on the arm and wished him luck again and left. On Wednesday, May 1st, at 3pm, J called me on my mobile. The call lasted 37 seconds. J said that he could not stop the direct debit payment of wages immediately and it may take a few days. He said that as I had taken holidays in April, he would be contacting his accountant to see if I owed him money or he owed me money. He asked if I had received my wages for the previous week. I said that I had received my wages. Again, he said that he would be contacting his accountants and would let me know what they said. On 8th May J rang my mobile at 1:30pm. This call lasted 40 seconds. J said that he had been speaking with the accountants and they told him that I was owed 38.4 hours holidays and he was prepared to call this quits for the week's holiday I had. He then said that I had been paid a full weeks' wages for my last week but had only worked 2 days and therefore I owed him 3 day's pay which came to €290 nett. I asked J to get his accountant to put this into an email and forward it to me. J said he would and this ended the conversation. On May 10th at 10am James rang my mobile. This conversation lasted 41 seconds. J said that he had sent on the email from the accountants and that I owed him 3 days' pay. I said that I was not at home and would read the email when I returned home. I have had no further communication or contact with J, T, C or any staff member of the shop/deli.”

The Complainant stands over this account of the history of her employment. In answer to my questions the Complainant confirmed that she answered an advertisement placed in the window and that one of the Directors interviewed her and gave her a job within a couple of days. The Complainant indicted that she had recently been unemployed but had been self-employed working in a bakery before that. The Complainant confirmed that she is highly proficient in the area of food preparation and hygiene and held the relevant HACCP certification.

The Complainant was never given her Contract of Employment and basically had to feel her way into the position. The Complainant was scheduled to work 40 hours each week at a fixed salary.

The workplace employs five or six members of the same family all of whom seemed to have operated so as to “manage” the Complainant. The Complainant said that in the circumstances she did not know who her line Manager was or who to go to if there was a problem. However, the Complainant did confirm in evidence that she would have assumed that J was her Manager as she had been interviewed for the role with the Respondent.

As the Complainant had not been provided with a Contract of Employment, she had not had sight of nor had she been directed to any Grievance Procedure that she could invoke if there was an issue in the workplace. The Complainant it should also be noted, lived locally and was a neighbour who would have frequented the shop/deli over the years. In fact, the Complainant even baked a wedding cake for one of the Co-owners in the past.

As set out in her narrative, the Complainant clearly felt under pressure in this workplace. To some extent the difficulties experienced could not be considered unusual in a situation where a person is essentially on probation in an extremely busy environment. However, it is clear from her account that the Complainant believed that the Matriarch figure (T) in this operation was extremely overbearing, rude and critical. In this regard, for example, there can be no doubt that the Complainant was made to feel that she was somehow implicated in a till shortfall. I cannot know whether this was intended by T, as she did not present to give evidence. There was, of course, no obvious HR person in the company.

Ultimately the Complainant handed in her resignation on the 24th of March 2024 following an angry and outraged confrontation initiated by T who dressed the Complainant down in front of two co-workers in the manner vividly described in the Complainant’s narrative. The Complainant, who in no way deserved this verbal assault, was deeply upset at T’s conduct and it was this interaction that led her to terminate her employment. This was a Constructive Dismissal in that the complainant felt that she could not see a time when she could comfortably work alongside Ms. T. In her evidence the Complainant stated that she felt that she was not being trusted and that she was being targeted.

The Complainant had no Contract of Employment and therefore approached J and told him that she was leaving.

The Evidence adduced by the complainant was challenged as appropriate by the Respondent witnesses.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by its two co-Directors – brothers J and L. The Respondent rejects that there has been a Constructive Dismissal.

Both these witnesses were given an opportunity to have their say. I accept that the brothers were not forewarned as to how the Complainant might have felt before she made the decision to terminate her own employment on the 24th of March 2024. She had not raised previous issues which the Complainant had set out in the workplace relations complaint form. I would have to accept that they were perhaps blindsided by the decision to terminate her own employment.

The Respondent did not specifically raise the issue of the failure to put them on notice of any difficulties being experienced. However, I must consider myself as being aware of the obligation that in a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage in and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. In terms of authority I would always have regard for the seminal Employment Appeals Tribunal case of  UD 474/1981 Margot Conway  -v-   Ulster Bank Limited  wherein the Tribunal stated:

“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

This would normally present a good defence to the Respondent, save insofar as the Complainant was not at any time during her employment given any advice or information on a Grievance process operating in the workplace. As previously noted, the Complainant did not even have a Contract of Employment. She had no knowledge of a Grievance process. Even as she was tendering her resignation, she was not told a grievance process much less was she invited to trigger a workplace Grievance. In the evidence provided by J, I was told by J that there is a Company Grievance policy though none has been physically presented or shown to me. Nor yet have I had sight of any company handbook. The two brothers have simply confirmed that there is no formal HR function in this workplace as there has never in forty years been the need for one.

I invited the brothers to explain what steps they had taken in the immediate aftermath of the shock resignation to find out what had happened.  Whilst I understand that they did talk to their Mother -T- they at no stage sought to make things right with the Complainant who, it has been accepted, should never have been treated by T in the manner that she was. It seems to me that T was simply a person not to be crossed, and if the fallout involved a perfectly good and conscientious Employee leaving the employment, then that was the price the Employer was prepared to pay.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I have considered the oral evidence adduced. On balance I find that the Complainant was Constructively Dismissed and is entitled to redress in the form of compensation for the financial loss sustained. In assessing this loss, I have to be mindful of the fact that the complainant should have approached J or even L before coming to the final decision as matters may have been resolved without the need to leave the employment. As per the above, the Complainant did not exhaust any internal processes to try and resolve issues. That said, I accept that the Complainant had very limited information at her disposal when the decision was made. The Respondent did not allow for a cooling off period and simply cut the Complainant adrift and without a backwards glance.