ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000279

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 20/06/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The claimant submitted that she was hired as a Cook/Cleaner by the respondent some 14 years ago and was compelled to resign on the 19^th.May 2015 when the respondent no longer intended to be bound by the terms of her contract .She asserted that unfounded allegations of performance deficits had been made against her and she was unfairly facing demotion to cleaning duties.She further submitted that she pursued a grievance and that it was not addressed in a reasonable or fair manner.

The claimant asserted that she fulfilled a variety of roles since the commencement of her employment depending on service needs including administrative work.She stated that she facilitated the respondent 2 years ago when they asked her to fill a cook’s position following the resignation of a previous cook – she was assigned on a job sharing basis to work opposite another cook on alternate days.

The claimant submitted that she was approached by her manager on the 13^th.May 2015 and was advised that she was no longer qualified to carry out kitchen duties owing to HSE requirements and that the best she could be offered was 2 hours per day kitchen preparation along with cleaning of the Child Care building.She later indicated her disappointment to her manager – she saw this move as a demotion as it involved reverting to her original assignment when she started with the respondent , she was not offered an opportunity to upskill and remain on cooking duties and she had never been given the opportunity of a receptionist post having completed a Fetac Level 5 course.The claimant indicated that she did not want to revert to cleaning duties and expressed a preference for redundancy.Her manager contended that redundancy was not an option as the role was not redundant and asked her to think about the offer.The claimant left disappointed and dismayed.The following week while preparing food for the children the claimant came across a document entitled “Kitchen Report” which she asserted attacked her character and performance in the kitchen – the document was unsigned and undated.A copy of the report was submitted in evidence.The claimant was unable to ascertain who had written the report and proceeded to write her letter of resignation after completing her shift.She felt embarrassed and defamed and asserted that the story of the HSE requirements was a fabrication .The claimant received a text message from her manager the following day – the manager called to the claimant’s house to see her.The claimant gave an account of the exchanges with her manager at the meeting – the claimant asserted that the manager assured her that there were no issues about the claimant’s professionalism in the kitchen and that the offer of the job doing kitchen preparation and cleaning was still available.The claimant asserted that the manager reiterated hat she could not offer redundancy but would be able to organise an apology and a handshake.

The claimant submitted a letter of complaint about her treatment to the Board on the 22^nd.June 2015 and the Secretary responded on the 29^th.June confirming that there would be a full investigation of her complaints.The Board wrote to the claimant on the 2^nd.Sept but the Board did not uphold the claimant’s grievance.

It was submitted that the respondent had failed to discover the truth or carry out an investigation into the claimant’s complaint.There was a considerable delay on the respondent’s part in replying to the complaint , the claimant was at no stage interviewed in the course of the investigation and that the respondent had failed to adhere to their own procedure in the conduct of the investigation.It was accepted that the claimant’s use of the term malpractise in her letter of complaint was inappropriate.

The claimant gave direct evidence of the meetings that took place with her supervisor and emphasised the extent to which she felt aggrieved by the discovery of the “Kitchen Report”.

Respondent’s Submission and Presentation:

The respondent submitted that the claimant had resigned from her employment and consequently asserted that there were no grounds for a complaint of unfair dismissal- constructive or otherwise.

It was asserted that the claimant had not discharged the onerous burden of proof to ground a complaint of constructive dismissal and that the respondent had not acted in any way that would have compelled her to resign – the provisions of UD 104/1970 Higgins –v- Donnolly Mtors Ltd. were invoked in support of this position.It was further submitted that the claimant had failed to exhaust internal remedies before resigning and Eat determination 474/1981 – Conway-v-Ulster Bank was invoked in support of this position.

The respondent set out a chronology of the exchanges between the claimant and her manager in the run up to the claimant’s resignation.It was denied that the manager advised the claimant that she was no longer required to undertake kitchen duties and the manager’s contemporaneous notes of the meeting were submitted in evidence.It was asserted that the claimant was asked to undertake additional cleaning duties during the summer months when there were fewer children at the centre and consequently less staff were required in the kitchen.It was asserted that it was anticipated that the claimant would return to do more cooking hours at the end of the summer when she would do HACCP training – the claimant’s hours of work and pay were to remain the same.The claimant had been hired as a cook/cleaner as set out in her contract and had during previous summers been assigned more cleaning duties.The claimant- without raising a grievance - gave notice on being told that she was required to do more cleaning duties during the summer.

It was submitted that the”Kitchen Report” made no reference to the claimant and that the author of the report was simply complying with a HACCP procedure and that the criticisms contained therein were not directly solely at the claimant as it contained references to days the claimant had not been working.It was submitted that if there was an issue with the claimant’s cooking it would have been dealt with by the respondent – there was no issue with the claimant’s performance and the claimant had been offered her job back.

It was submitted that the claimant had already left the workplace before submitting her complaint to the Board and that as she was no longer an employee this could not have constituted a grievance.It was advanced that it was settled law that one must raise a grievance prior to leaving employment.It was submitted that the claimant had no entitlement to redundancy , that she used the “Kitchen Report” as a pretext for walking out of the workplace and when an offer of a limp sum did not materialise , the claimant lodged her complaint.

It was contended that the claimant’s recollection of events were significantly at odds with the contemporaneous notes of the meetings that took place between them.

The author of the “Kitchen Report” gave direct evidence of the context of the report and the claimant’s manager gave evidence of her exchanges with the claimant prior to and after her resignation.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Decision:

I have reviewed the submissions and evidence advanced at the hearings and accept the respondents contention that there is a very high standard of proof required in a constructive dismissal case.The test requires that an essential element of the contract of employment was breached and/or the respondent acted in such an unreasonable manner that the employee could not be expected to put up with the conduct any longer.

I acknowledge the that the claimant was extremely aggrieved with the content’s of the “ Kitchen Report” and accept that while a serious misunderstanding arose in relation to its contents culminating in the claimant leaving the employment , primary responsibility for this misunderstanding must rest with the respondent – employers must ensure that documents such as this should be appropriately stored ,catalogued and contextualised and not left lying around to be interpreted by whoever happens upon it.

Notwithstanding this flaw the fact of the matter is that the respondent did not dismiss the claimant and the matter to be determined is whether or not the claimant was constructively dismissed.

Having reviewed the entirety of the evidence and noting in particular

a)      the chronology of events leading up to the claimant’s resignation

b)      the fact that it was open to the claimant to utilise internal procedures to process her grievance in relation to her perceived demotion and the contents of the “Kitchen Report” but did not do so until after she resigned

c)       the opportunity she was afforded to withdraw her resignation and return to work

I find the claimant has failed to satisfy the tests that have to be met to succeed with her complaint.Consequently I do not uphold the complaint of constructive dismissal and I find against the claimant.

Dated:   7^th September 2016