ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003807

Complaints for Resolution:

Date of Adjudication Hearing: 22/11/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints to me by the Director General, I inquired into the complains and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant was employed as Manager of the respondent restaurant. The employment terminated on March 21^st 2015 in circumstances which give rise to the claim under the Unfair Dismissals Act as a complaint of constructive dismissal.

While there was a dispute about the date when the complainant was actually given his contract of employment he accepted that he did have one.

He says in his submission that he was coerced into accepting responsibility for missing money and required to sign a document admitting responsibility. He was given no notice of the meeting at which this was done and alleged breach of fair procedure.

He says the constructive dismissal was a result of being confronted with the alleged theft and that he had no choice but to do so. He had to leave his job because of the conduct of his employer.

He says he provided an explanation for the losses which was that dissatisfied customers had bills voided. Also the matter was common knowledge in the business which made his position untenable.

He withdrew the complaints under the Industrial Relations Acts at the hearing.

Respondent’s Submission and Presentation:

This complaint is made under the Unfair Dismissals Act but the respondent says that the complainant quit his employment and that no dismissal took place.

It is true that he was confronted with serious financial discrepancies and losses and had been suspended on March 21^st 2015 while they were being further investigated. While the figure of €10,000 had been mentioned evidence was given by the business owner that the losses were significantly in excess of this.

The device allegedly being used was the voiding of bills and then the cash which had actually been paid by a customer not being entered. The complainant had sole access to the till (apart from the owner) and it was his responsibility to ensure that everything was in order.

It is not credible that the voiding was done in response to customer dissatisfaction. One bill voided was for €2,400.

The matter had been first raised with the complainant in February 2015. It was notable receipts in the restaurant significantly increased that during his period of annual leave. He asked for evidence of what was being alleged and this was provided in March. The complainant denied responsibility and said it was a mistake.

He was initially suspended on March 21^st 2015 to enable further investigation by the owner and the company accountant. The complainant did nothing to challenge the suspension.

He was summoned to a meeting on April 8^th 2015 to be confronted with the evidence and asked to acknowledge, in line with the provisions in his contract that he had responsibility for the losses. He left that meeting saying that the respondent would be ‘hearing from his solicitor’ but in fact that was the last that was heard from him until the current proceedings on his behalf.

The respondent says he had adequate time to prepare for the April 8th meeting and was told he could be accompanied at it.

In respect of the document he signed it willingly. The respondent also says that if others knew of the matters under investigation the respondent was not the source. Two of the other employees were family members and sought to involve themselves in the issue.

The respondent says the complainant fails to meet the standard required for constructive dismissal.

Findings and Conclusions

There was a preliminary point about whether the complainant had the required twelve month’s service necessary to bring his complaint within jurisdiction of the Unfair Dismissal Acts.

The respondent says that the complainant commenced work on April 18^th 2015 and that it ended on April 4^th 2015, thereby falling just short. The complainant says that he commenced work in early April.

I am satisfied that the complainant was employed before April 18^th as there was evidence of a report he made on April 18^th giving rise to a start earlier than that; probably two weeks earlier.

I therefore find that he had the required twelve month’s service.

Turning first to the complaint of constructive unfair dismissal, the breach of a contract of employment is, like any other breach of contract a very serious matter.

Most dismissals by the employer involve an examination of whether the employer acted fairly in carrying out the dismissal and the test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination.

So when ‘the shoe is on the other foot’, and when an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal the bar is set just as high. Likewise, the burden of proof, which now passes to the employee is set at a high level.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. The complainant stated that ‘he had to leave his job because of the conduct of his employer’.

Generally the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

Put simply, the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

In applying this test to the current case I have to examine the behaviour of, initially the employer and then the employee.

I am being invited to conclude that an employer, who according it her own direct evidence, was incurring losses of many thousand of euros, (in excess of ten thousand; she was unwilling to quantify exactly) does not have the right to put that to the manager responsible for overseeing the business, and that, when she does so, this justifies the breach of the contract of employment by the complainant.

Stated thus, in such simple terms, it is a manifestly preposterous proposition. Paradoxically, the underlying principle which most regularly appears in constructive dismissal cases is that of ‘mutual trust and confidence’, and whether it has been breached to the point that the contract of employment itself is fatally affected.

The respondent stated in evidence that the complainant willingly signed the document that he now complains led to his terminating the employment. In response to a direct question he confirmed that he had done so willingly despite initially stating that he was ‘compelled’ to sign it. The meeting at which all this took place lasted an hour.

The question of whether the complainant was responsible for the losses is not a matter for decision in this case.

However, the right of the respondent to raise it is. The idea that an employer might be prevented from making such an inquiry is indisputable. The complainant repeated in his evidence that the losses were a result of normal refunds to dissatisfied customers. This seems sufficiently at issue to at least ground the concerns of the respondent to pursue the matter further.

As to the behaviour of the complainant he had other options. He had the right to challenge the conclusions of the respondent investigation but failed to do so. He left the meeting on April 8^th and never returned.

I find therefore that the complaint does not even remotely meet the standard of proof necessary to ground a case of constructive dismissal.

There was significant confusion about, and lack of preparation for the complaints in this case.

Despite being fully legally represented there was uncertainty about whether the complaint was of unfair dismissal or constructive dismissal, the complainant could not state what exactly his complaints were under the Industrial Relations Acts and he eventually withdrew them, and, whatever about the date on which it was provided the complainant did have a statement in compliance with the Terms of Employment (Information) Act at the time he made his complaint.

Taken together, the complaints probably fall to be considered vexatious, although I have considered them fully on such merits as were presented.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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.

I do not uphold complaint CA-00005557-003 under the Terms of Employment (Information) Act and that complaint is dismissed.

I do not uphold complaint CA-00005557-004 under the Unfair Dismissal Act and that complaint is dismissed.

Complaints CA-00005557-005 and 006 were withdrawn at the hearing.

Dated:   30^th January 2017