A waitress who first raised concerns over the payment of tips to staff at The Ivy restaurant in Dublin has lost her claim that she was dismissed wholly due to her trade union membership.
In the case, Workplace Relations Commission (WRC) Adjudicator, Hugh Lonsdale found that Julia Marciniak’s membership of UNITE was a factor but not the only factor in her dismissal.
Mr Lonsdale found that Ms Marciniak’s refusal to behave as her employer expected was the major factor and that this was the most important factor in the attrition between the waitress and the restaurant.
Mr Lonsdale dismissed Ms Marciniak’s claim as her dismissal did not result wholly or mainly from her union membership.
Credit card tips
The Ivy on Dublin’s Dawson Street is an offshoot of the famous Ivy restaurant in London that has long been a magnet for celebrities including the likes of Gwyneth Paltrow, Madonna, Tom Cruise, Brad Pitt, Uma Thurman and David Beckham.
In the case concerning the Dublin brasserie, Ms Marciniak told the hearing that when starting work at The Ivy in June 2018, she was told that she would receive 80% of tips plus her hourly wage of €10.55.
However, a week later the WRC hearing heard the restaurant’s General Manager allegedly told staff that the split of credit card tips was changing and staff would receive 40% of credit card tips and would continue to receive 80% of cash tips.
Tips would be shown as ‘bonus’ on wage slips.
In October 2018, Ms Marciniak and a number of members of the waiting staff submitted a letter of complaint about the amount of tips they were receiving to management.
The credit card tips percentage for staff was increased to 50% but Ms Marciniak claimed that the system put in place by The Ivy made it impossible for waiting staff to work out what portion of the gratuities left by customers was given to them.
In December 2018, UNITE told the WRC hearing that the issue over the tips was reported in an Irish Times restaurant review, which also praised Ms Marciniak for the service she provided.
In January 2019, a politician introduced Ms Marciniak to UNITE, who in turn raised staff concerns relating to tips and a camera in a changing room and the camera issue was resolved by the company.
The Ivy told the WRC that it issued a final written warning to Ms Marciniak as a result of her on March 1st 2019 allegedly asking a customer for a cash tip.
Mr Lonsdale stated that given the lack of evidence around this incident, the issuing of the final written warning appears disproportionate.
Ms Marciniak was suspended and Mr Lonsdale stated that from the evidence given by the Ivy General Manager, the manager found Ms Marciniak’s behaviour on her return from the first suspension to be disruptive and this led to her dismissal.
Mr Lonsdale stated that the GM described Ms Marciniak’s continued efforts to get others to join the union as harassment and this was clearly part of what he considered her disruptive behaviour.
Ms Marciniak was dismissed in April 2019 after being told that she is “unable to perform the role to the standard that is required by the company”.
The dismissal letter stated that “this disciplinary action is not related to your trade union membership but as direct result of your behaviour”.
Short of standards
Mr Lonsdale stated that the procedures in dismissing Ms Marciniak fell short of the standards expected in such investigations.
However, Mr Lonsdale stated that he was not investigating to see if the dismissal was unfair or not but if it arose wholly or mainly from Ms Marciniak’s union membership.
Ms Marciniak was unable to bring an unfair dismissal action as she was employed by The Ivy for less than 12 months.
UNITE Senior Officer, Brendan Ogle confirmed today that the Marciniak case is one of two cases concerning former Ivy restaurant workers where the WRC has thrown out the workers’ claims as they were not dismissed wholly due to their trade union membership.
Mr Ogle said that the two rulings “show up flagrant flaws in the legislation”.
He stated that the rulings show that neither woman could justifiably have been dismissed if they had 12 months served.
Mr Ogle said that the rulings confirm that the two women were dismissed partly due to their UNITE membership.
Mr Ogle said that the rulings are “very useful by identifying serious faults in the legislation and accurately reflect appalling workers’ rights legislation here”.
He stated: “We have proven that these two workers were partly dismissed because of their union membership, but that is deemed not to be enough.”
Mr Ogle stated that both cases have been appealed to the Labour Court. He stated: “These are very important cases.”
Ms Marciniak is now employed by UNITE as the union’s Hospitality and Tourism Co-ordinator.
Speaking after the publication of the decision today, Ms Marciniak claimed: “I know we were sacked for our union activity and nothing else and for that reason we have appealed.”
Ms Marciniak stated that the adjudication "is correct in many ways, but its ultimate conclusion is wrong and the law is inadequate to protect vulnerable workers”.
The 37-year-old said that she found her dismissal from The Ivy “extremely stressful”.
A native of Poland, Ms Marciniak has been living here since 2008, and she commented that she was afraid that she wouldn’t be able “to find a job in hospitality after that”.
A spokeswoman for The Ivy on Tuesday said that the restaurant does not have a comment to make on the WRC outcome.