A bartender who accidentally got a voice note from her supervisor stating that she had been ordered to “get rid” of the worker because of her anxiety disorder has been awarded €10,000 for a discriminatory constructive dismissal.
“[She] is f***ing killed with her nerves so she’s over there in a panic attack now…I have to get rid of her now. F***ing hates (sic) doing it but [my manager] said: ‘Look, she has to go’,” the supervisor said in the recording, which was presented in evidence to the Workplace Relations Commission (WRC) by the bartender’s lawyers at a hearing last December.
The bartender, Ms Z, said in evidence that she had asked her supervisor to keep the details of her anxiety disorder private. She said she suffered “stress and humiliation” over what happened and argued she was left with no alternative but to quit.
The commission upheld her complaint under the Employment Equality Act 1998, making a finding of discriminatory constructive dismissal against her former employer, an unidentified hospitality group which employs around 100 staff across 12 businesses.
The company had denied dismissal, claiming that the manager mentioned in the voice note did not have the authority to terminate someone’s employment and that there was no intention to sack the complainant.
The bartender said she finished her shift on August 13th, 2021. She told her supervisor she was feeling unwell, but agreed to open up the bar the next morning. However, she said that when she went in the following day she told Ms B by text that she felt an anxiety or panic attack coming on.
‘Private word’
Ms Z said received the voice note while she was waiting to be relieved – and had just finished listening to it when her supervisor arrived. She said her supervisor asked for a “private word” and then told her: “You’re sick, you’re not suited to the job” – or “words to that effect”, Ms Z told the tribunal.
Ms Z said her supervisor then told her that the bar manager had wanted to give the message personally but that Ms B “thought it would be better coming from a woman”.
The bar manager referred to in the voice note, identified only as Mr A, said he found out from Ms B that she had sent the voice note “in error” and told the bartender to “take whatever time she needed to get better”.
He said he was not authorised to dismiss staff so “could not have told Ms B to ‘get rid’ of the complainant”, adding that he had accommodated Ms Z when she said she was anxious about working nights.
The complainant said that when she met the manager in September 2021, he denied saying what had been attributed to him in the voice note.
She said Mr A told her: “This isn’t good for the company. I never told her to say this”.
Giving evidence, Ms B said she apologised once she realised the message had gone to Ms Z and that there was “no intention of letting her go”.
The manager said he had asked the complainant about coming back to work at the meeting. Ms Z said she did get messages asking her to return, but felt that with the voice note “the damage was done”.
The owner of the hospitality firm said he had not seen any details of the voice note until the complainant’s submissions to the WRC.
‘Contrived’
Paul Comiskey O’Keeffe BL, for the hospitality group, said the claim for constructive dismissal was “unsustainable on the facts alleged” and that the discrimination claim had been “contrived” by the complainant after she quit in December 2021.
“No decision to terminate, nor termination, occurred as a matter of fact,” he said.
Gareth Hayden, barrister for Ms Z, said: “This is not the language of a person who has been asked to give an employee time off work for medical reasons - rather it is the language of a person who has been tasked with dismissing another employee.”
He argued that a person with Ms Z’s anxiety disorder “could well be placing themselves at risk of deterioration in their condition” by going back to work where there was a “clear” intention to dismiss them because of their disability – and where it was “clearly the subject of discussion between fellow employees”.
In her decision, adjudicating officer Gaye Cunningham wrote that the “tone and language” would “reasonably be considered to be deeply offensive”.
“There were clear indications in its wording that the intention was to dismiss Ms Z,” she added.
Ms Cunningham accepted it was “not possible” for the complainant to make use of workplace grievance procedures given her mental health difficulties and added that there was “little follow-up” from the employer despite its claims that Ms Z would be “welcome” back to work. She ordered the company to pay Ms Z €10,000 in compensation for the effects of discrimination.
