Worker

Employer

Anonymised Parties

A Barista

A Take-Away Coffee Van

Representatives

  Self-Represented

Timothy Smyth Timothy Smyth Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00054218

11/04/2022

The Worker was employed by the Employer as a Barista from the 17th November 2021. She earned on average €274.00 gross per week. She contents that she was summarily dismissed on the 7thApril 2022 and not having the requisite one year’s continuous service under the Unfair Dismissals Act 1977 (as amended) seeks recourse under Section 13 of the Industrial Relations Act 1969. The Worker further contents that she is owed outstanding tips for the month of March 2022. The Employer maintains that the Worker was dismissed therefore no Industrial Relations issue arises and that all monies due and owing to the Worker were paid to her.   

The Worker submitted detailed written submissions and supporting documentation in advance of the hearing. At the hearing the Worker outlined the background facts to this dispute with reference to the documentation submitted.

The Worker commenced employment with the Employer on the 17th November 2021. There were two Directors of the Employer. On average the Worker earned €274 gross per week. At no time during the course of her employment with the Employer did the Worker receive a statement of her terms and conditions of employment nor did she receive any policies or procedures or staff handbook.

On the 7th April 2022 the Worker was summarily dismissed from her employment with the Employer verbally over the telephone following a disagreement that arose in the workplace that day.

The Worker stated that the disagreement was between the Worker and one of the Directors as a result of the Director being unhappy that the Worker and another colleague were using their mobile phones during work hours. The Worker submitted that the Director became aggressive, was shouting and started swearing at her and that when she asked the Director not to swear at her he became angrier. The Worker was very upset and intimidated at this outburst by the Director.  This Director was not present at the hearing.

After work on the 7th April 2022 the Worker returned a telephone call from the other Director of the Employer, who was present at the hearing, The Worker submitted that she was informed during the course of the telephone conversation that the Directors felt that the Worker had overreacted and as a result, she was no longer a “good fit” for the Employer.

The Worker was informed by her Employer that they would not be booking her for any further shifts. The Worker asked for a reason as to why she would not be booked for any further shifts and she was informed that it was because she had used her mobile telephone during work hours. The Worker stated that she asked the Director if the colleague who was also reprimanded that afternoon for using their mobile telephone would also be receiving the same telephone call to which the Director replied that the other employee was not being dismissed.

According to the Worker the Director stated that in asking not to sworn at me the Worker had spoken inappropriately to a manager, and the Employer no longer wanted the Worker as an employee. The Worker requested that the Employer reduce the content of the telephone conversation to writing however the Director refused to do so.

On the evening of the 7th April 2022 the Worker sent an email to the Employer requesting a written letter of dismissal. She received no reply. On the 8th April 2022 the Worker sent a Whatsapp message and an email to the Employer further requesting a letter of dismissal, payment of one week’s notice, wages owed to date, outstanding payslips and outstanding tips. She received no reply.

On the 10th April 2022 the Worker sent multiple Whatsapp messages and emails to the Employer stating that as she had not received confirmation of her dismissal in writing from the Employer she would be attending for her usual shift at 6.45am the next morning so it could not be said that she did not show up for work.

The Worker received no response to either her Whatsapp messages or her emails therefore at 6:45am on the 11th April 2022 the Worker attended at work and clocked in for her shift. Sometime thereafter the two Directors arrived at the premises and informed the Worker that she no longer worked for them and that she had to leave the premises which she refused to do until such time as the Employer confirmed  the dismissal in writing. The Worker stated that she felt intimidated by the two Directors therefore she telephoned her father who came to meet her at the Employer’s premises. The Employer telephone the Gardai so the Worker and her father stepped outside the premises to await their arrival. After explaining the dispute to the Gardai, the Gardai informed the Worker and her father that it was a civil matter and there was nothing they could do.

On the 11th April 2022 the Worker emailed the Employer again requesting a letter of dismissal and the monies due and owing to her. The Worker submitted that it was only after the Gardai attended the premises and advised that it was a civil matter that the Employer communicated with the Worker in writing. The Employer responded by advising that the Worker’s employment was terminated on the 7th April 2022, that notice pay and outstanding pay would be included in the final payroll and that tips for the month of March and April to date would be distributed via Revolut the week commencing 19th April 2022.

At the hearing the Worker acknowledged that she received her notice pay and outstanding pay on the 19th April 2022 however she was never paid the tips due and owing to her.

The Worker submitted that she was a hardworking member of the Employer’s team, that she had worked for the Employer since November 2021, receiving cash bonuses on more than one occasion for her hard work and ability to continue the flow of operations when the Directors were on holidays. The Worker stated that her desired outcome was for the Employer to accept that she was unfairly dismissed, that there were no fair grounds for her termination of employment or fair procedures followed. Further, the Worker submitted that as a result of the Employer’s actions in unfairly dismissing her she was left in a financially unstable position and suffered from severe stress as she was unemployed until June 2022 as a student living alone, relying on odd shifts from a hospitality agency and the generosity of friends and food vouchers from her university to live.

The Employer’s representative stated in writing that the Worker was dismissed therefore no Industrial Relations issue arises.

At the hearing of the dispute the Employer’s representative stated that as far as the Employer was concerned the Unfair Dismissals Act 1977 (as amended) did not apply, seven months had passed since the Worker’s dismissal and as far as the Employer was concerned the matter had concluded.

The Employer’s representative submitted that the issue of tips and the non-payment of tips was not properly before the Adjudicator and should be disregarded as the Worker only ticked the box on the Complaint Referral Form stating that her complaint falls under “Unfair Dismissal” and did not have a dispute before the Adjudicator regarding tips and the non-payment of tips. 

In response to a question raised by the Adjudicator regarding the payment of outstanding tips to the Worker the Employer’s representation stated that as far as the Employer was concerned the Worker was paid all monies due and owing to her and that the Employer would not be putting the matter any further or indicating what monies were paid or how and when they were paid.  

In conducting my investigation, I have taken into account all relevant evidence, submissions and documentation presented to me by the parties.

The dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969.

Section 13 Industrial Relations Acts, as amended, states as follows:

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of Workers) exists or is apprehended and involves Workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an [Adjudication Officer].

(3) (a) Subject to the provisions of this section, an [Adjudication Officer] shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute,

The Worker concluded the narrative within her complaint on the online Complaint Referral Form that:

“I feel I was unfairly dismissed without reasonable grounds and I am not confident that I will receive all money owed, including tips for March 2022…”

The Worker confirmed at the hearing that the trade dispute which she was seeking a recommendation in respect of related to her unfair dismissal and the non-payment of tips for March 2022.

Therefore, in line with the above, I will proceed to investigate the Worker’s dispute and make a recommendation, if appropriate or necessary, arising from that investigation.

Unfair Dismissal

The first dispute raised by the Worker is in essence a claim of unfair dismissal. On the basis that the Worker had less than the 12 months service, required under Section 2 (1) (a) of the Unfair Dismissals Act 1977 (as amended) in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts 1969.

The Worker commenced her employment with the Employer on the 17th November 2021. Her employment ended on the 7th April 2022. The Worker referred her dispute to the Workplace Relations Commission on the 11th April 2022.

The Worker was not provided with any contract of employment or statement in writing setting out his terms and conditions of employment, any disciplinary policy or for that matter, any substantive rationale for her dismissal.

I am guided by S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), which sets out a basic procedure which an employer should follow prior to dismissing an employee. These include putting the allegations to the employee in writing in advance of a hearing, allowing the employee the opportunity to properly defend herself at the hearing, permitting the appropriate right of representation, and allowing an internal appeal of any determination. In essence, the Code of Practice requires that the procedures for dealing with workplace disciplinary matters (reflecting the varying circumstances of enterprises/organisations) must comply with the general principles of natural justice and fair procedures, also confirmed in jurisprudence.

Notwithstanding that the employment relationship has usually ceased in such disputes, there are numerous examples of the employment fora recommending awards of compensation in respect of dismissals (with less than one year’s service required for a complaint under the Unfair Dismissals Acts) where there has been a breach of fair procedures.  In particular, the Workplace Relations Commission and the Labour Court has consistently found that employers are required to afford due process to employees before a decision to terminate employment is taken, where there is less than a years’ service.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare v. A Worker, LCR21798, noting: “… it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

In the instant case I found the Worker to be an impressive witness and her account of the circumstances giving rise to her dismissal wholly credible and well documented. I did not have the benefit of hearing from either the Director involved in the disagreement on the 7th April 2022 or the Director who summarily dismissed the Worker.

Following my inquiries and having taken into account the evidence of the Worker it is apparent that the Employer did not follow any of the steps outlined above, and more particularly set out in S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), and simply dismissed the Worker without any prior warning and for no apparent reason apart from the Worker not being a “good fit” and the Employer did not want her as an employee anymore. Such a dismissal is clearly substantively and procedurally unfair.

I find that the Employer in this case has disregarded the fundamental principles of fair procedure and natural justice in the manner in which it effected the Worker’s dismissal. I am satisfied that the Employer’s handling of the entire matter breached the Worker’s right to fair procedures and natural justice, and she was dismissed without any due process and as a consequence of the same I recommend in favour of the Worker.

 Tips

The Worker submitted that she was owed outstanding tips of approximately €146 for the month of March 2022. She stated that tips were collected into a jar or a cup and divided by the Employer on an ad hoc basis.

Following the termination of her employment the Worker sent a number of Whatsapp messages and emails to the Employer requesting, amongst other things, the payment of her tips for March 2022.

By email dated the 11th April 2022 the Employer advised the Worker that the Employer was calculating the tips for March and April 2022  and that the tip monies due and owing to the Worker would be Revoluted to her the week of the 19th April 2022.

In response to a question posed by the Adjudicator the Worker confirmed that she received her notice pay and last months pay but that she did not receive the tips due and owing to her whether by way of Revolut or at all.

No witness evidence was presented by the Employer. In response to a question raised by the Adjudicator regarding the payment of outstanding tips to the Worker the Employer’s representative stated that as far as the Employer was concerned the Worker was paid all monies due and owing to her and that the Employer would not be putting the matter any further or indicating what monies were paid or how and when they were paid.  

I find the Worker’s account of the dispute regarding the outstanding tips for March 2022 in the sum of €146 to be wholly credible and well documented and as a consequence I recommend in favour of the Worker.

Section 13 of the Industrial Relations Act 1969 – summary dismissal of employee with less than one year’s service  – S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) – breach of fair procedures, natural justice and due process – tips – non-payment of tips