Complainant

Respondent

Parties

Aisling  Cusack

Mansion Bar Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Mark Walsh Kenny Stephenson Chapman Solicitors

Kirsty Kavanagh Kavanagh and Co Solicitors

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-00036101-001

11/05/2020

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

CA-00036101-002

11/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00036101-003

11/05/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent gave their evidence under oath.  The respondent director gave his evidence under affirmation.  Cross examination was facilitated.  Witness evidence was also facilitated by an interpreter provided by the WRC. 

A number of hearing days took place due in part to the unpreparedness of the parties on one occasion (when the representatives were not properly briefed, despite a specific request from the Adjudicator) and on another, due to the passing of the mother of a witness.

The finalising of this decision was delayed, in part, due to a family bereavement and in part by the impact of Covid 19.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  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…”.

CA-00036101-001 Unfair Dismissal

The complainant submitted that she was Constructively Unfairly Dismissed and was subjected to victimisation in work.

CA-00036101-002 Terms of Employment Information

The complainant submitted that she was not given terms and conditions of work in writing nor a contract of employment.

CA-00036101-003 Employment Equality

The complainant submitted that she was subjected to continuous bullying and harassment on the basis of her gender.

The complainant submitted that she worked for the respondent as a head chef in the provision of restaurant and bar services. In July 2019 the respondent hired another chef for the kitchen. The complainant submitted that this was where the issues between the parties began. The complainant submitted that from this point onwards she was subjected to verbal abuse and aggression from the other members of the kitchen staff. She submitted that the abuse was discriminatory on the basis of her gender and age. 

The complainant submitted that despite her role as head chef the other staff began to ignore her and instead began following the new chef. She noted that in September 2019 the manager accused her of stealing money from the till, but she was denied the opportunity to defend this accusation. She noted that on another occasion a manager came into the kitchen shouting aggressively and threw a bundle of papers at her. The applicant said she was put in fear of physical violence and that there was never any investigation into this assault. Although the respondent claims that an investigation took place, the complainant is not aware that any findings were actually made in relation to the investigation.

The complainant was never provided with terms of employment, a grievance procedure, a bullying and harassment policy or an employment handbook. She also noted that there were no formal grievance procedures in place at all material times.

The complainant submitted that inappropriate comments were made repeatedly regarding her age and gender.  She submitted that although she notified her employer of these actions, no investigation was pursued.  The complainant submitted that the respondent failed to uphold or maintain a safe system of work, and that grievances raised by her remained unaddressed until she left her employment.

The complainant submitted that in the decision of Michael Murray v Rockabill Shellfish Limited [2012] 23 E.L.R. 331, a less egregious instance of bullying and harassment involving management shouting at staff was accepted by the Employment Appeals Tribunal as being a sufficient justification for resignation. The complainant submitted that the bullying, harassment and discrimination in this instance are far more egregious.

The complainant submitted that in the decision of Tabisa Agbaje v Lloyds Pharmacy Ireland Limited, ADJ 00025702, the most common instances grounding a situation of constructive dismissal as follows in fact each of those instances giving rise to constructive dismissal occurred in this instance:

“A serious breach of contract (such as not paying or demoting an employee without reason); Forcing one to accept unreasonable changes to employment conditions (e.g. changing one’s shift pattern); Allowing bullying or harassment behaviour to go unchecked; Making one work in dangerous conditions; Making false accusations, such as fraud or misconduct”

The complainant noted that unlike in the case of Zabiello –v- Ashgrove Facility Management Limited (UD1106/2008) there was no grievance procedure for the complainant to exhaust in this instance as has been confirmed by the respondent in correspondence. The complainant did however consistently raise these issues with the respondent and did not receive any response whatsoever.

Summary of the complainant’s relevant evidence:

The complainant outlined how she was treated in work and noted that she made a compliant that was in the process of being investigated.  She felt that she was being pushed out of her position.  She noted that she made a verbal complaint and met with the investigator.  However, she not that she never received a confirmation of the complaint.

The complainant noted that she was not informed of any complaints against her.  She noted that she was subjected to comments such as “a woman’s place is in the sink”, and “bitch”.  She stated that there was intimidation on a daily basis.  The complainant outlined the erratic and violent behaviour of a co-worker, noting that she was terrified.  She stated that she went out sick for a while and then she was placed on the Covid Payment.

She stated that there were no procedures or policies in place for anything.  She stated that the workplace was completely toxic.  Under cross examination, she confirmed that her place as Head Chef was repeatedly affirmed.  She noted that she did not have sight of any complaints against her.  She also noted that she never put her complaints in writing to her employer, only to her solicitor.

The complainant stated that the complaints against her were complete lies, and that a colleague was installed to keep an eye on her rather than to make the working environment easier.  She stated that she stepped back from doing evening work in Sept 2019 as she felt uncomfortable working with a male colleague.  The witness noted that she had made an allegation that he was taking money out of the till.  She noted that the female colleague who was installed to work with her would run upstairs to tell tales.  The complainant noted that she worked with her polish colleague but worked around the others.

The respondent submitted as a preliminary point that the compliant form submitted was entirely devoid of detail. It was submitted that the complainant has not provided a comparator and that the Employment Equality complaint was “frivolous and vexatious”.

The meaning and scope of the words ‘frivolous and vexatious’ were set out by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [(1997) IESC 60, in which it stated: “So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.”

In Fay v Tegral Pipes Limited & Ors [[2005] 2 IR 261], McCaracken set out that the Supreme Court “While the words “frivolous and vexatious” are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the courts. Such abuse cannot be permitted for two reasons. Firstly, the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second and equally important purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.”

The respondent also referred to the case of of Pirsz v Ryanair, wherein the Workplace Relations Commission (WRC) emphasised that in discrimination cases, an employee must produce evidence from which an inference of discrimination can be drawn. The respondent noted that only when the employee makes a prima facie does the burden of proof shift to the employer to defend the claim.

The respondent submitted that the WRC dismissed both complaints. The WRC was highly critical of Mr Pirsz, noting that “it is a very serious matter for an employee to accuse their employer of breaking the law”. It emphasised that in discrimination cases, an employee must provide evidence to establish a stateable case. Employers are entitled to know “with reasonable clarity” the nature of the case against them. Mr Pirsz, however, had failed to provide “any evidence whatsoever” of discrimination.

The respondent submitted that prima facie evidence was held in the Labour Court in the case of Rotunda Hospital v Gleeson [DDE003/2000] to be: “evidence which, in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The respondent submitted that in Cork City Council v McCarthy EDA21/2008, the Labour Court recommended that: “the type or range of facts which may be relied upon by the complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can be properly withdrawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain in particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that a conclusion of discrimination is the only, or indeed the most likely explanation which can be drawn from those proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”.

The respondent also noted that in Melbury Developments Limited v Val Peters [2010] ELR64 the Labour Court warned “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The respondent contended that the complainant has failed to demonstrate that she has a prima facie case. The respondent noted that it has not ever been provided with any document setting out the alleged ill treatment that the complainant purportedly suffered.

The respondent submitted that in August 2019 there was a complaint of bullying and harassment against the complainant.  The subsequent employment investigation started off with a series of complaints and cross complaints.  This was pursued under an independent process and there were engagements with all parties.  The respondent accepted that they had no grievance procedure in place.

CA-00036101-001 Unfair Dismissal

The respondent submitted that the complainant did not exhaust all avenues open to her when she resigned before the investigation into various workplace matters was concluded.

CA-00036101-002 Terms of Employment Information

The respondent accepted that it the Act was contravened

CA-00036101-003 Employment Equality

The respondent submitted that the complainant has not established facts from which discrimination against her may be inferred.

Summary of relevant witness evidence:

A witness, a former employee, was a Polish national, noted that the complainant had a very harsh personality.  She stated that on a number of occasions, the complainant called her names and gave out to her, making specific reference to her nationality.  She was asked about the complainant’s denials of abuse towards her.  The witness made reference to a number of occasions where the complainant treated her badly.  She also recalled one occasion where the complainant was nice to her, when she helped her with her homework.  Although she doesn’t still work with the respondent, she stated that she was pleasantly surprised by the ‘goodbye’ that created in the workplace for her.  She also noted that staff members were protective towards her.

The witness also stated that she never heard anyone being abusive towards the complainant.  She stated that it, (the complaint) was not true, that no one ignored her or intimidated the complainant.

Under cross examination, the witness broadly supported her account.  She noted that the complainant wrote down her hours and that she did not want to lose her job so put up with erratic behaviour from the complainant.  She stated that for two years the complainant treated her badly, and was only nice one time, when she helped her with her homework.

The witness also noted that she was only working certain shifts and could not comment on what happened when she was not there.  She also noted that she did not follow all that was saind and could only comment on what she saw.  She re-iterated that the complainant would be very aggressive with staff and was bossy. – if someone said anything against her, she would get them back.  The witness noted that she was afraid of the complainant, everyone was.

Another witness, who knew the complainant from before the start of working together noted that she did not get on with the complainant ‘workwise’.  She said that the complainant is a little ‘rough around the edges’ and could be domineering.  She noted that she was a little nervous and apprehensive at times while working with the complainant.  She noted that the complainant was mocking of their polish colleague degrading her and made fun of her on a daily basis. 

She stated that the complainant used excessively coarse language and tone with people, she said she was intimidated and felt humiliated on occasion by the complainants’ comments and behaviours.  She noted that the complainant was the head chef and did 90% of her work in the kitchen.  The witness noted that when the male colleague was engaged, the complainant’s position was not diluted but that he (the male colleague) made people’s lives easier.

The witness stated that she never heard their male colleague call the complainant ‘a bitch’ as alleged, nor did she hear him used the phrase “a woman’s place is by the sink.”  She stated that the foul language was used by the complainant, a lot.  She also noted that the complainant “lost the rag at the owner” wondering what he was doing in her kitchen.  She noted that the workplace was a better ‘setup’ when she was away.  She also outlined the complainant comments regarding an incident where the witness received a needlestick injury.

The witness noted that action was taken against the complainant on foot of a complaint being raised.  The respondent engaged an external HR consultant to investigate matters.  The witness concluded that she still works with the respondent, working as a chef and noted that there were never any difficulties on the basis of gender in the workplace.

Under cross examination, the witness noted that she was an acquaintance of the complainant but after she began working there, she began to dislike the complainant and began to disengage from her.  When asked where the issue was a conflict of personality, she stated no that it first began with how the complainant was mistreating their polish colleague.  The witness said that normally she was quite headstrong but that as she was dealing with personal issues at the time, she prioritised her own needs over those of her colleagues.  She reiterated the foul language and comments used by the complainant and detailed the circumstances of their use.  She noted that the complainant was not generally supportive.  She noted that the complainant reduced her working hours in response to personal issue but that since she left her hour had returned to normal.

The director gave evidence of coming down to the kitchens once or twice a week but that he usually stayed in the office.  He stated that he had a good working relationship with he the complainant and although she encountered some difficulties in work, it was with a person engaged by the complainant, not the director.  He noted that the complainant never reported any issue in writing but that she suggested that he fire two of her colleagues.  He stated that he could not do so.  He engaged a HR consultant to try to resolve matters.  He noted that he complainant resigned before the investigation could conclude.

The witness noted that the complainant was a stronger personality than he was and that he had to swallow the verbal abuse he received at her hands.  However, he reiterated that he normally wouldn’t go into the kitchen.  He noted that no precise details were ever provided to him of the what the complainant’s issues were.  He said that initially the complainant was respectful but towards the end she told him that he wasn’t allowed into the kitchen and had to make an appointment to see his own staff.  On one occasion when he came into the kitchen, the complainant stated that “if you want to be a chef, open up a Chinese takeaway” – he stated that he felt humiliated by her comments.  After that he kept away from the kitchen.

He stated that although the complainant had raised issues about a staff member, that staff member was female not male and they did not relate to gender at all.

The complainant was not a particularly credible witness, her evidence was, at times, fluid. The respondent witnesses were broadly consistent, and the polish witness gave evidence that was, for the most part coherent and consistent although somewhat fragmented.  Other witnesses were very consistent when giving evidence and particularly credible when it came to the detail of some of the actions of the complainant in the workplace. 

The complainant did not come across as a nice person to work with, various witnesses described her as domineering and bullying or in similar terms when giving evidence about her behaviour.  The witnesses who were work colleagues were consistent in outlining that the complainant was not subjected to abusive language but rather was the one using the abusive language and tone which her subordinates.  She also allegedly treated her employer in an abusive fashion.

While giving her evidence, the complainant came across as very a forthright person, with a brusque personality.  Having regard to all the evidence presented by the witnesses, on balance, I prefer the accounts provided by the respondent witnesses.

CA-00036101-001 Unfair Dismissal

The respondent did not have policies and procedures in place.  However, when he received complaints, he arranged to have an external HR specialist come into the workplace to conduct an investigation.  This was done, according to the respondent, to improve the atmosphere in the workplace.

Complaints were made against the complainant and she, in turn, made complaints against others. However, the complainant resigned before that investigation had concluded.  As such, she did not exhaust all avenues open to her, notwithstanding that the avenues were somewhat ad hoc in nature.

The fact that there was an investigation going on when the complainant resigned is in my opinion, fatal to the complainant’s argument that she had no option but to resign.  She had the option to wait for the result of the investigation.  Accordingly, I find that she was not unfairly dismissed

CA-00036101-002 Terms of Employment Information

The respondent accepted that the act was contravened.    Having regard to the foregoing I find that the complaint is well founded.  I consider that an order of compensation equivalent to four weeks salary is just and equitable in all the circumstances of this complaint.  The complainant was in receipt of €550 net per week. 

CA-00036101-003 Employment Equality

The complainant outlined how she was harassed by a male colleague and victimised by the respondent.  The evidence of the witnesses for the respondent contradicted the complainant’s assertions.  I did not find the complainant to be a credible witness but I did find the respondent witnesses to be credible.  On balance, therefore, I prefer the evidence of the respondent witnesses.

Section 85A of the Act deals with the Burden of Proof in cases under the Employment Equality Act, 1998.  Section 85A(1) states that:

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

In the respondents’ submissions, the case of Melbury Developments Limited v Val Peters [2010] ELR64 was cited and it was noted that the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The complainant’s evidence was not credible, and her assertions were unsupported by evidence.  Therefore, I find that she has not established facts from which it may be presumed that there has been discrimination in relation to her.  Accordingly, I find that the complainant was not discriminated against.

CA-00036101-001 Unfair Dismissal

Having regard to all the written and oral evidence in relation to this matter, my decision is that the complainant was not unfairly dismissed.

CA-00036101-002 Terms of Employment Information

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is well founded, and I order the employer to pay the complainant €2,200 (equivalent to four weeks salary) which I consider to be just and equitable in all the circumstances of this complaint.

CA-00036101-003 Employment Equality

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Constructive Unfair Dismissal – did not exhaust all internal procedures – Terms of Employment Information – conceded – award of compensation – Employment Equality – facts not established form with discrimination may be inferred.