Worker

Employer

Anonymised Parties

Restaurant Worker

Restaurant

Representatives

Jeanne Kelly Solr.

Dominic Dowling LLP Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003062

29/08/2024

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 function, 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 in recognition of the fact that all formal hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions 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 contradicting evidence provided by the other side.

The specific details of this dispute are outlined in the Workplace Relations Complaint Form which issued on the 29th of August 2024.

The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, I am satisfied that the Complainant was provided with every courtesy to ensure that her case could be fully made. A witness SS also came to speak on the Complainant’s behalf. In addition to the oral evidence provided, the Complainant is relying on the statement set out in the complaint form which reads as follows:

I was forced to leave this job as I was uncomfortable in the workplace. In March 2024, I made an informal complaint to my employer about a fellow staff member making derogatory comments about my body. Nothing was done about this, and the perpetrator is a relative of my employer. Later in the month, I was pressured to go on dates with the same staff member, and upon my denial he became aggressive. I made another informal complaint to both the manager and the owner, and again nothing was done. This has continued on and off since March. On Monday 19th of august, I messaged my employer saying I feel uncomfortable in the workplace and must soon leave. When I once again complained about the actions of the fellow staff member, this time over text message, my employer responded 'what you do with guys is your responsibility'. He then proceeded to say I need to leave immediately as the drugs I take in work make me unsuitable to be there, and too high to perform my job. The drugs I take daily is prescribed Yasminelle birth control. Because of this, I could not work any notice or receive pay for the following weeks. I feel this was constructive dismissal and I was discriminated because of my gender and because of female health reasons.

I was provided with supplemental documentary evidence in support of the Complainant’s case after the hearing. These were WhatsApp and text messages. No objection was raised to any of the materials relied upon by the Complainant in making her case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was unfairly dismissed. As noted, the Complainant has less than 12 months service and therefore cannot avail of the protections set out under the unfair dismissal legislation. The Complainant can, however, have this matter considered under the industrial relations structures.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the obligation on the Complainant to make the case against her employer.

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 had full legal representation at this hearing. The Respondent entity was also represented by a witness FB who co-owned the restaurant.

The Respondent rejects that there has been an unfair dismissal and asserts that the termination, when it came was triggered by the Complainant and was ultimately justified by reason of ongoing issues with the Complainant.

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.

I have carefully considered the positions set out by both parties herein.

The Complainant commenced her employment as a waitress in the Respondent restaurant in and around January of 2024. In her evidence, the Complainant agreed that early on she had socialised with at least two other members of the wait staff while she was working in the restaurant. One of the people she socialised with was the nephew (S) of a co-owner of the restaurant (A).

As per her complaint form, the Complainant gave evidence that her friendship with S became difficult because she did not want to date S, who subsequently ended up going out with another waitress.

The Complainant says that S became hostile towards her because she had rejected him. The Complainant says she raised the issue of unwanted comments with her line Manager – A - who also happened to be the uncle of S. The Complainant says that the line Manager A said that she did not understand Italian culture. In her oral account before me, the Complainant attributed a number of unsavoury comments to her line Manager A which were not set out in her workplace relations complaint form. This amounted to an unfortunate attack on A in circumstances where he was not present to defend himself. To some extent I have to discount this portion of the Complainant’s evidence.

When I reconciled both her oral evidence and the narrative set out in her complaint form, the Complainant appeared to be confining the issues that occurred between her and S to the month of March of 2024.

The Respondent witness who did give evidence – FB – has no recollection of the Complainant ever coming to him about being hassled and/or harassed by another member of staff (S) in the workplace. The Complainant says she had approached him. FB did concede that there was no formal Contract of Employment in place. He also accepted that there was no staff handbook readily available which might give the Complainant access to the protocols and policies operating in the workplace. There was therefore no Dignity at Work policy to which the Complainant could turn.

In any event, some time had passed before the 19th of August 2024, which is the date that the Complainant wrote to FB in the following terms:

Hi F I just wanted to let you know that I’ll no longer be working in R. There’s been a bit of unprofessionalism with my co-worker and I feel I’m leaving for the same reasons as others. I don’t think it’s a comfortable work environment for me and I’d rather focus on my studies now. Thank you for everything though.

This is the first time the Complainant appears to have written anything to FB concerning her working conditions. Certainly FB is making the case that this was the first time any issue concerning a co-worker was being raised with him. The Complainant provided a screenshot of this text message to me in the course of the hearing.  This text certainly corroborates the fact that the Complainant handed in her resignation on the 19th of August 2024. It was suggested to me by the Respondent Solicitor that the availability of this text also tends to confirm that there were no other issues raised through the WhatsApp medium as the only previous texts between the Complainant and FB on WhatsApp were dated in May of 2024 concerning wages – which issue was resolved at that time. The Complainant said in evidence that she was forced to resign from what she perceived to be a hostile and unsafe environment.

When asked about this development, FB stated that this was the first indication that he had had that there was some sort of issue between the Complainant and S. More importantly, FB holds the firm view that the Complainant texted the above message on the 19th of August 2024 by reason of the events which had taken place on the 18th of August 2024. In this regard, FB gave evidence that the Complainant had come into work two hours late on the 18th of August. He says that she was either drunk or high. He says that the Complainant might have been upset at the death of a family member, and this seemed to have triggered an episode. FB believes the Complainant’s presence on the restaurant floor was problematic and she was told to go home.

FB believes that the Complainant’s resignation on the 19th of August came from a place of embarrassment and the blaming a co-worker was seemingly some sort of act of deflection. It was against this backdrop that FB had replied to the Complainant in the following way:

Well to be totally honest, I was going to ask you to leave because of your lack of professionalism, since you showed up to work completely drunk yesterday and given the amount of times you have called in sick these months. You say that R (restaurant name) is not a professional environment, yet you show up drunk at work. I don’t know who you are referring to when you mention “others” as no one has left R for the reasons you are referring to. Either way, no problem. We are in agreement that you are not suitable to work for R restaurant.

On balance, I am inclined to accept the version of events that in tendering her resignation, the Complainant pre-empted a termination of her employment or some other disciplinary action by reason of her unacceptable demeanour in the workplace on the 18th of August 2024.

If there were issues with S – and I have no way to know one way or another if there were – then these were separate to the events of the 18th and 19th of August. In this regard, I am relying on the clear wording in the text messages already set out.

I have read through the subsequent messages exchanged concerning monies owed, minimum wage and holiday pay. It is worth noting that it took the Complainant a couple of days to suggest that her birth control medication was the only drug she had taken on the 18th of August.

On balance the Complainant was not unfairly dismissed. I am however satisfied that the Complainant has exposed some weaknesses in the workplace which need to be rectified. The starting point for this must be the failure to provide the Complainant with a Contract of Employment. Even though this work appears casual, the wait staff in any such establishment is entitled to know their basic terms of employment. In this regard the Respondent needs to have some regard for the demands set out in the Terms of Employment (Information) Act, 1994.

In addition, it is a clear failing on the part of the Respondent that it did not have any protocols and procedures in place for employees seeking to make complaints against co-workers and/or raising legitimate Grievances in the workplace. The Complainant has highlighted a lack of any procedures. A useful starting point is the  Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000).

Lastly there can be no excuse in this day and age not to have a Dignity at work policy. Such a policy sets out the standard of behaviour expected in the workplace. It provides a framework for preventing and addressing unacceptable behaviour, such as bullying, harassment (including sexual harassment), or discrimination. This helps create a safe and inclusive environment where people feel valued.