Worker

Employer

Anonymised Parties

A Bartender

A Restaurant

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act

CA-00067138-001

04/11/2024

The complainant met the owner of the respondent on July 28th, 2024, when he came into the place where the complainant was working and offered him a  job. It was full time with over thirty-five hours promised per week and an increase in his current wages. 

He started the job the job as a barman some days later on July 31st, 2024, and was given minimum training on how the diner worked and just a brief introduction of what he would be doing.

The restaurant has a house style based on being deliberately rude to customers (as part of its business style) and his training involved being told how to be rude, no smiling, without being abusive, offensive or making homophobic and racial comments. His co-workers were also rude and annoyed for no reason and it was really disturbing. There was no respect or empathy between the employees.

He finished his first week on August 4th. When he asked for feedback or tips to be how he might improve at the job, the only response was to stop smiling and become more in tune with the house style of rudeness. 

The cash tips were divided by one person and distributed.

After the shift on August 10th the owner asked him to stay back to sign his contract. The complainant suggested taking a copy of contract to consider it and sign it the next day, but the respondent refused to allow him. He asked for a copy of the contract and was told it would be emailed to him, but this was not done.

On August 11th, the lastdayoftheweek, hewaswaitingtoreceive thecashtipsandtalktothe owner abouttheweekand somecomplaints he had, hewashandedaletter (submitted) foldedandwasaskedtoread it. It was terminating his employment.

There had been no verbal or written warning or explanations. He enquired about the allegations and was told that they were confidential and could not be disclosed. The complainant left the premises immediately.

He has made a number of efforts to get the tips to which he is entitled and also sought an explanation for his dismissal but without success.

He says the treatment he received was unfair, unethical and mentally exhausting. He was denied entrance to the establishment. The respondent became threatening to the extent that the Gardaí were called but they did not show up.

 To this date he never paid the electronic tips and the service charge money which he is legally owed.

The employer did not attend the hearing. He had not objected to the r=hearing proceeding, as is an option under the Act.

The matter has been referred under the Industrial Relations Act. In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

As can be seen from the complainant’s submission his employment with the restaurant lasted less than two weeks. While the respondent did not attend the hearing it had not objected to the referral within the permitted period and so the hearing proceeded.

It is certainly a mark of the times we live in that it would be considered a sort of business asset in what we normally describe as the hospitality sector to practise rudeness to customers as matter of policy.

While businesses in general are encouraged to develop a unique selling point, it is normally something which will enhance rather than diminish their appeal. That said it is some consolation that the instructions given to the employees in this regard require them to stop short of discriminatory abuse of customers.

The respondent is, apparently, a franchise business and part of an international chain.

To judge from the facts of this case as set out in the complainant’s submission, they indicate that the culture which the respondent applies to its customers applies also to its employees with even greater force.

About ten days into his employment the complainant was invited to sign a contract of employment. The following day, in an extraordinary volte face his employment was arbitrarily and unexpectedly terminated.

The letter of termination contained a series of relatively serious charges and concluded

‘Given the severity of the breaches and after careful consideration of your actions and their impact on the. Work environment, we have decided to terminate your employment with immediate effect.

The complainant was told that complaints had been made about him, but which could not be shared with him, for reasons that were not explained. There was no disciplinary hearing or any opportunity given to the complainant to respond to the allegations.

 His attempts to get monies owed to him from gratuities were unsuccessful.

Eventually, the complainant was refused admission to the restaurant for his persistence.

Most employment law derives from statutory rights and there are, in general, some eligibility requirements based on a person’s service. On these facts, the complainant could not have made a complaint under the Unfair Dismissals Act, for example.

Under the Industrial Relations Act there is a broader jurisdiction (using that word loosely) in relation to general considerations of fairness and it has stood employers and workers in good stead since 1969 in resolving disputes between them; initially under the remit of the Rights’ Commissioner service until 2015, and since then by WRC Adjudicators.

Its most significant limitation is that the adjudicated outcome of such references come in the form of Recommendations only. That said, a complainant may derive some comfort from such a recommendation if it vindicates their feeling of injustice, whether or not any recommendation of a financial nature is subsequently honoured.

The complainant in this case was an impressive and credible witness, a student supporting his way through advanced, higher-level studies, but who was deeply hurt by these unpleasant actions.

His treatment by the respondent, (uncontradicted, due to the non-appearance of the employer at the hearing) was truly deplorable. While it is true that a person may have their employment terminated more easily while on a probationary period, for example, an employer is not excused from the general requirement to be fair, in this case affording the complainant an opportunity to respond to the allegations made against him, giving some notice and paying whatever monies may be lawfully due to the worker concerned.

The respondent failed all of these tests, and while the complainant was at the disadvantage of not being able to rely on the contract he signed the day before the termination, as he was not given a copy, it is unlikely to have provided cover for this conduct on the part of the employer.

I find that the termination of the complainant’s employment was procedurally grossly unfair, as was the failure to pay him his outstanding tips and I recommend that he pay the complainant €2,500.00 and that he review his employment practices.

The respondent’s conduct is particularly reprehensible in that this is not the first occasion on which he had acted in this way in relation to tips.

In a WRC Decision earlier this year heard under the Payment of Wages (Amendment) (Tips and Gratuities) Act 2022, which introduced new rules as to how employers have to share tips, gratuities and service charges generated electronically amongst employees, the respondent in this case was ordered to pay €1018.00 to a former employee and he would appear to have learned nothing from that experience.

(Although that case was heard in public, regrettably I may not name the respondent in the context of this case because of the requirements for anonymity under this legislation).

Fair procedure.