Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00005603-001

30/06/2016

The respondent restaurant was taken into   new ownership.

In the course of the first week difficulties arose   between the owner and the manager. Initially following a period of sick leave   the complainant resigned from his position. He claims that he was the subject   of a constructive dismissal.

The complainant says that he   was subjected to verbal abuse by the new owner and that he was denied the   right to take cigarette breaks. He was told that if he took them he would be   subject to disciplinary action.

He says he was verbally abused   in the course of this meeting, after which he became unwell.

There was also a deterioration   in the quality of the meals made available for staff and he was asked to   clean the toilets.

He had other duties taken away   such as the taking of reservations and his role in menu planning.

Therefore he decided to resign   his position and regards himself as having been constructively dismissed.

The current respondent acquired   the restaurant on May 23^rd 2016.

The complainant transferred   under the TUPE regulations. On the day of the transfer the new owner met the   employees to introduce himself and to reassure them about their continuity of   employment. He offered to speak on an individual basis to anyone who wished   to do so.

Some days later at about 2pm on   Saturday, May 28^th he needed to talk to the complainant during   service to learn that he was on a cigarette break. The owner told him it was   not acceptable to take such breaks during ‘service’ when the restaurant was   busy.

They agreed to meet later to   discuss it.

When they did meet there was an   altercation between the complainant and the owner. A full account of the   incident was submitted in evidence. It describes events in which the   complainant became very agitated and verbally abused and insulted the new   owner using foul language.

The complainant told him that   he was going to resign and when told he would need to put that in writing he   invited the owner to write it for him, which he refused to do.

The owner sought to reassure   and calm him and invited him to take his break which was then due.

On the complainant’s return at   6pm the General Manager met him and raised his earlier conduct, saying that   such aggression was unacceptable. The complainant continued to be angry and   abusive and indicate that he was sick and was going to go home.

The following day the   complainant sent the General Manager a letter in the course of which he   attributed his sickness to mistreatment at the hands of the owner. The owner   replied stating his view that the purpose of the meeting had been to address   the complainant’s unacceptable conduct and referred him to the grievance   procedure. The general manager advised him that any grievance should be   directed to him.

The complainant remained on   certified sick leave but was assured that the respondent wished to facilitate   his return to and on June 2nd advised   that he wished to be advised of the procedure to be used in the grievance   procedure, stating ‘I will let you know if I want to start it’.

This he did on June 9^th,   enclosing only the letter of complaint previously submitted immediately   following the incident on May 27^th. He sought a further update on June 14^th   but stated that due to the alleged conduct of the owner ‘and the lack of an   apology’ the only solution he could see was that ‘he no longer works’ for the   respondent.

The respondent contacted him   the following day stating that it would meet him to discuss his grievance and   with a view to resolving any issues he had. He pointed out that such a   meeting could not take place until the complainant had been certified fit to   participate which could not be before a medical examination on the 22^nd.

The complainant replied   submitting his resignation.

The General Manager wrote   asking him to re-consider but the respondent heard nothing further until it   received notice of the WRC proceedings.

The complaint is that the respondent was the victim of a   constructive dismissal.

A constructive dismissal takes place when an employer’s   behaviour is so unreasonable that the employee is justified in unilaterally   breaking the contract, or that the employer has through their actions   effectively broken the contract. The burden of proof is set high in such   cases for the same reason that it is in unfair dismissals cases of the normal   type.

A breach of the employment contract sufficient to fall under the   Unfair Dismissals Act must be very serious and well justified, by whomsoever   it is effected; employer or employee.

In this case the key events can be compressed into a very short   period and more or less constitute a single episode, which in itself is   significant, before the complainant went on sick leave. There was no   continuing conduct by the respondent which might justify the complainant’s   actions after the commencement of the sick leave period, indeed quite the   opposite.

The direct evidence of the owner and of a witness to the   hearing, as well as contemporaneous notes of the events indicate a complete   loss of control by the complainant on the day on question.

Direct evidence given at the hearing by both the owner, the   General Manager and a witness shows a level of abusive conduct by the   complainant in the face of which the respondent showed considerable restraint   at the time and subsequently.

In such cases the critical issue is the conduct of the employer,   although the employee’s behaviour must also be considered. But by employer   behaviour is generally meant 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.’

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

This reflects the provisions of section 1 of the Unfair   Dismissals Acts 1977-2015.

There the requirement is defined as being conduct of the   employer that may make it reasonable, or give an entitlement to the employee   to terminate the contract of employment.

On any assessment of the conduct of the parties in this case the   complainant had no such justification based on the evidence adduced in   respect of the conduct of both parties and in the ensuing period.

There is no evidence of any conduct on the part of the employer   which might be regarded as unreasonable.

The respondent continued to seek the return of the complainant   despite his conduct as soon as he was certified medically fit to do so and   offering him the option of availing of the grievance procedure, which,   critically he failed to do. An onus falls on an employee in these   circumstance to avail of the procedures to process his grievance before a   resignation, which must only arise as a last resort when all else has failed   to bring it within the principles applying to constructive dismissal.

There was no basis in the employer’s conduct to justify the   complainant’s resignation and the complainant’s decision to resign can not be   attributable, or justified by anything in the employer’s conduct.

His own conduct also falls below the standard required of an   employee in respect of exhausting available remedies for any complaint he   had, which on the basis of the evidence, would have been very difficult to   stand up. However, he did not even avail of the opportunity to do so.

Accordingly, his complaint fails.

For the reasons set out above Complaint CA-00005603-001 is   not upheld and is dismissed.

Constructive dismissal, Conduct of employer