ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004122
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 17/11/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8(1B) of the Unfair Dismissals Act 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the Parties an opportunity to be heard and to present to me any evidence relevant to the complaints.
Complainant’s Submission and Presentation:
The Complainant submitted her claims to the WRC on July 13th 2016. At the Hearing she stated that she was bullied and harassed by the Respondent because she brought a Personal Injuries claim against a business acquaintance of the Respondent arising out of serious injuries suffered by her from a work night out. The Complainant was out on sick leave for a number of months as a result. When she returned her hours of work were reduced and she was treated less favourably than other employees. The Complainant was isolated by the Respondent and was roared and shouted at by the Respondent. The Complainant was threatened about withdrawing her claim. The Complainant did not receive a Christmas Bonus in 2015 like all of the other employees. The Complainant was unable to continue in her job due to the impact on my health and she informed the Respondent of the reason which she could not return to work. The Respondent failed refused and/or neglected to investigate or take any steps to improve the hostile working environment.
The Complainant did not receive a Contract of Employment
The Complainant was informed by the Revenue Commissioners of the returns made by her regarding her income details. These are not consistent with the hours worked by the Complainant or monies paid to the Complainant.
The Complainant did not receive holiday pay due to her.
Respondent’s Submission and Presentation:
All claims were denied by the Respondent.
The Complainants average weekly wage was incorrectly stated and should be 178.17 Euros.
The Complainant sustained an injury on a night out and was absent from work for a period of 21 weeks from January to July 2015. The Complainant resigned from her position.
The Respondent played no part in the Complainants decision to resign.
The Complainant field to avail of the Company grievance procedure and failed to give the Respondent any opportunity to resolve any grievances she alleges that she had.
The PI claim is against a third party not the Respondent and nothing to do with the Respondent.
The Complainant was given a phased return to work due to her injury and physical nature of her role.
The respondent does not pay a Christmas bonus and a gesture of goodwill was given to bar staff only who worked over the Christmas.
The Complainants hours of work increased not reduced after she returned to work after her injury.
The Respondent submitted a copy of a signed contract of employment by both parties.
The Complainant received payment for all hour worked. She received a loan for 2,000 when out sick. The Complainant had accrued annual leave to the value of 397 Euros for the 2015 leave year. That sum was deducted form her final payment in line with company procedure as a repayment of the loan. The Complainant still owes the company a sum of 1,603 Euros.
At the Hearing the Complainant withdrew claims reference numbers CA- 00005838-002 and CA-00005838-003. As claim reference number CA-00005838-005, under the Payment of Wages Act was all integrated into the case for unfair dismissal, this claim was also withdrawn.
Section 8(1B) of the Unfair Dismissals Act 1977 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of that Act.
With regard to claim reference number CA- 00005838-001 under the Unfair Dismissals Acts 1977 the Complainants case centred on that she was being discriminated upon because she took a personal injuries claim against another publican in the town where she worked and she maintained she was put under pressure by the Respondent because she took this claim, that her hours of work were reduced after she came back from work and that her holiday pay was being kept from her. At the Hearing it emerged that the Complainant worked more hours on average after she returned to work that before she went out sick. It also emerged that she had sent a text to the Respondent saying she would pay back what she owed the Respondent. A text dated July 23rd from the Complainant to the Respondent stated ”Just make up wat ever holidays I v worked up and see way I owe u still in total and well sort it”. The Respondent replied it was 1,600 Euros and the Complainant then said in a further text she would sort it. The payment to the Complainant of 2,000 was a loan and not an entitlement under her contract of employment and therefore the Complainant acted reasonably in all the circumstances by deducting her holiday pay due when she resigned. The Christmas bonus was only paid to Bar staff and not Kitchen staff so that’s not sufficient grounds for leaving employment and it was seven months after that anyway that the Complainant resigned so that issue has no significant relevance to the issue and finally there was no evidence presented by the Complainant to support the claim of the Respondent bullying the Complainant. The fact that the Complainant never once raised a formal grievance against the Respondent is also material.
Overall I find there were no grounds for the Complainant to justify her claim for constructive dismissal and accordingly her claim for unfair dismissal under the Section 8 of Unfair Dismissal Act 1977 is not well founded.
Dated: 12 December 2016