It’s a story of two young migrant women who worked at Dublin’s Ivy restaurant. The former waiters took on the restaurant, part of a large UK chain, after it sacked them for joining a union. The Labour Court determined last week that Julia Marciniak and Lenka Laiermanova were unfairly dismissed by the Ivy (aka Troia UK Restaurants Ltd) on foot of trade union activities.
It’s been a long road for head waiter Laiermanova and Marciniak since they were fired in March 2019. This case was an appeal, supported by their union Unite, of a Workplace Relations Commission (WRC) 2021 rejection of their claim of unfair dismissal.
Both experienced waiters, they had worked at the high-profile restaurant on Dublin’s Dawson Street since soon after it opened in summer 2018. Hired on hourly rates of €10.55 and €12 plus 80 per cent of tips (20 per cent going to back of house staff), the set-up quickly turned sour for Ivy workers when tips and service charges were withheld and instead used to part-pay those contracted hourly rates, making up the difference between minimum wage and their stated pay.
That company-wide structure was made clear in the Labour Court by Troia’s Sara Conway: service charges, gratuities and tips are controlled centrally and used to pay staff; any money over and above “is rolled forward”; and any shortfalls made up by the company.
When Marciniak and Laiermanova raised this and other issues with management and got nowhere, they went to TD Joan Collins, who raised it in the Dáil, and joined Unite.The story of tipping at the restaurant was covered in The Irish Times.
Some 60 pages of detailed Labour Court documents tell a convoluted tale, showing the vulnerability of precarious workers to poor treatment and sacking on a whim before they are protected by legislation.
That tale involves several suspensions; rules that only managers could take customer payments; covert recording of conversations; management proposing holding a disciplinary meeting in a nearby bar; an alleged customer complaint that was never produced; unsigned and undated (and not relevant) witness statements; and an incident (the reason the Ivy claimed they were sacked) on March 1st, 2019, when it was alleged they denied a customer an opportunity to leave a credit card tip and claimed gratuities could only be cash.
Marciniak and Laiermanova had encouraged around 20 workers to join Unite, which was seeking collective negotiation. But the court found that manager Jamie Belton’s claim, that he was unaware they were active union members, was not credible. It also ruled that on the balance of probabilities Belton had deliberately submitted a factually incorrect report in the disciplinary process.
‘Fatally flawed’
Labour Court deputy chairwoman Louise O’Donnell said disciplinary procedures were “fatally flawed” and that evidence supported the workers’ claim that allegations of misconduct were hiding the real reason for their dismissal.
Talking to Marciniak and Laiermanova this week, they seem happy with the outcome. “It was intimidating,” says Marciniak, originally from Poland. She recalls working at the Ivy, how obvious it was they were organising, “management looking closely, always someone above your shoulders. You can feel it split you apart.”
She also recalls the feeling when she was suspended, “being escorted from the building like some sort of thief, not being allowed to talk to colleagues. As humiliating and stressful as it was, it was also in my head, they must be scared. I felt, well, I have some power.”
When the initial problems arose at the Ivy, she thought: "Who will care about a few young migrant workers in transitory jobs?" But she was buoyed up by Unite's support, by public support, by the publication of stories in The Irish Times, and revelation of the "unfair" tipping practices. Joan Collins highlighted the tips practice in the Dáil, and Unite's Brendan Ogle "went beyond helping us", says Marciniak. The case was handled, and won, by Hamilton Turner Solicitors and barrister Katherine McVeigh, who represented the waiters in the Labour Court, on behalf of Unite.
Their case points up weaknesses in worker protections, she says, which don’t kick in until a year after starting a job.
Laiermanova, originally from the Czech Republic, echoes this: “The one-year rule should be scrapped” as employers “can do what they want and not give any reason.
Why not just have the probationary period of three months” before the Unfair Dismissals Act applies? “It’s ridiculous. There are no benefits to employees, just to the employer: they can fire you on the spot without reason, but you still have to give notice.”
Marciniak says that for workers less than a year in a job, “if you ask about your breaks, you can be dismissed. See ya!”
Laiermanova hopes their experience will help other workers and “will be a little bit of a revolution”. She says that “we didn’t think we’d win but if you don’t try…”
The four-day Labour Court hearing was more thorough than the WRC, with more witnesses. She feels vindication now. “We had nothing to worry about because we were just saying the truth and something had to be done. And we had great support, from the union, activists, our barrister. Everyone was there for us.”
After being sacked by the Ivy, Marciniak worked in a few different restaurants and, having learned the strength of being in a union, now works for Unite as hospitality and tourism coordinator. Laiermanova was pregnant when she was sacked and it was difficult finding a job, but she now works at the Devlin hotel restaurant in Ranelagh (where she says tips are distributed fairly among staff).
‘Exploitation’
For Marciniak, “the Ivy’s whole business model is based on exploitation. Even now, the service charge is still used to pay contracted wages. It’s a loophole in the new laws which is misleading customers about where the money is going.”
She’s conscious that while a Bill currently in process protects tips, it leaves the status quo on service charges, which are legally part of normal business income.
The Ivy in Dublin still adds a 12.5 per cent “service charge”, to all tables, which it is legally entitled to use to pay contracted wages; it is discretionary, and diners can ask for it to be removed, without impacting workers’ pay or tips.
As well as a win for the two workers, the ruling is seen as quite significant in wider industrial relations. Findings of unfair dismissal linked to trade union activities are rare, according to Industrial Relations News. Employment lawyer Richard Grogan, who was not involved in the case, says: “It was a very significant decision by the Labour Court. The issue of union membership is one some employers misunderstand, and don’t see the danger of dismissal for union mobilising.
The significance is that while the Unfair Dismissals Act only kicks in after a year with an employer, it has exceptions, including union activity and pregnancy, that some employers are not aware of. “It’s an important decision because it gives protection to employees who do join a union” and seek to defend their rights.
At the time of the dismissal, Grogan points out, “the Ivy was at the frontline of the tips issue”. It is “unusual to have somebody doing union work with less than 12 months service, and after that, employers know they are protected. It’s a substantial award for an unusual case,” and has implications for others in precarious employment, he says.
Unite’s Brendan Ogle says they are “groundbreaking decisions. When they joined Unite, the Ivy set out to get them. And it did get them. It sacked them for trade union membership and activity, using constructed circumstances. It’s a big thing to say, and I can say it now with confidence, because of the judgment.”
The Ivy was ordered to pay almost €10,000 (€7,924 for Laiermanova, €2,016 for Marciniak); this is compensation for lost earnings, not a penalty. “The money is nothing,” says Marciniak. “The penalty is completely insignificant for them, they are still a prosperous company making so much profit. The only damage to them is reputational.”
She says their customers have changed to “younger, less high profile ... some Irish people boycott it now.”
Overall, she says: “If you ask for help, if you want to highlight something unfair, you will get support.”
The Ivy was invited by The Irish Times to comment on the case for this article, but chose not to do so.
