ADJ-00006169

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00006169

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

Date of Adjudication Hearing: 15/02/2017

Workplace Relations Commission Adjudication Officer: Shay Henry 

Procedure: 

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

Attendance at Hearing: 

Complainant’s Submission and Presentation: 

The Claimant commenced employment in 2004 when the hotel first opened. In May 2011 the ownership of the hotel transferred to the respondent company. Thereafter the complainant reported to Ms A the daughter of the previous owner, who had worked in the hotel for some years. At this stage the complainant was effectively in charge of the kitchen and ordering supplies. A number of family members were involved in the running of the hotel and this caused difficulties as there was no one person in charge. The complainant wrote to Ms A on 9^th January 2015 resulting from an incident involving Mr C ( a brother of Ms A and fellow Director). The incident involved Mr C using bad language to the complainant and speaking to her in an aggressive manner in front of witnesses and embarrassing her. In addition, in her letter, the complainant also referred to an outstanding leave issue that had not been resolved, and thirdly, that a better structure should be put in place for the running of the kitchen so that all staff would be treated equally to prevent animosity relating to the annual leave. The absence of any manager with formal training in hotel management was causing difficulties.

A second incident occurred in September 2016 when Mr B demanded that the claimant apologise to a customer for putting gravy on an order. The customer also worked in the hotel as a handy man.

Also in September 2016 the premises were inspected by the Food Safety Authority and the hotel was closed temporarily. The claimant got the impression that the hotel owners were blaming her for the closure. This was compounded by a remark made by a member of the HSE team. During this time the claimant tried her best to ensure that the kitchen was run safely in line with FSA guidelines. She was liaising with Ms A regarding cleaning rotas, maintaining records etc. At one such meeting Ms A told the claimant that she was sick of listening to her and the Health Board telling her how to run her business. The claimant felt that she was being blamed for the closure order in circumstances where she had insufficient assistance to run the kitchen. She wrote a letter of resignation and gave two weeks’ notice. She gave the letter to Ms A who told her it was not necessary to work the notice period. At no stage did Ms A try to reassure her that she would receive the necessary support or management structure to assist her work in the kitchen.

Respondent’s Submission and Presentation: 

The Respondent employs 42 employees and is a family run business. Ms. A has been Managing Director of the Respondent since May 2011 when she, along with her brother, Mr. C, assumed responsibility for running the hotel following the sudden death of their father. Ms. A’s experience over a number of years in law, accountancy, recruitment and HR rendered her well-equipped for her new role.

The Complainant was employed as a Chef from July 2004 until she resigned of her own volition on 11 October 2016. Her contract of employment includes a clause headed “Grievance Procedure” which states, as follows:

“It is important that if you feel dissatisfied with any matter relating to your work you should have an immediate means by which such grievance can be aired and resolved. If you feel aggrieved at any such matter during the course of your employment you should raise the grievance with (Ms A) or (Mr C) either verbally or in writing. Further information can be found in the Employee Handbook.” 

The Complainant was aware of the existence of the Respondent’s Grievance Procedure. 

On 14 September 2016, the HSE Environmental Health Department issued a closure order on the hotel which endured for a period of five days. During the period following the issuing of the closure order, the Complainant worked in partnership with Ms. A to enable the business to recover from the impact of the closure order. Every aspect of the kitchen operations had been up-ended and re-instated by the combined effort of Ms. A and the Complainant. The Complainant had agreed to step into the role of Head Chef and had received the strongest possible and very public endorsement of her role from Management at an all staff town hall meeting on 17 September 2016 and was being resourced and supported at all times by Ms. A.

On 11 October 2016, the Complainant finished her shift at 3 pm. She hand delivered an envelope to Ms. A. The Complainant left the hotel premises before Ms. A had an opportunity to open the envelope. The envelope contained the Complainant’s letter of resignation from her position. Whilst the Complainant’s contract of employment required her to give one week’s notice of termination of employment, she offered the Respondent two weeks’ notice. The letter gave no reason for the resignation.

The Complainant arrived for duty at 1pm the following afternoon, at which time Ms. A invited the Complainant into the office and advised her that her resignation was accepted, that she would not be required to work the two weeks’ notice outlined in her letter but that she would be paid in respect of that period.              Before Ms. A had an opportunity to say anything further, the Complainant demanded aggressively to speak with other members of the family. The Complainant announced that the reason she was resigning was because Ms. A had developed a “drink problem”. The Complainant further indicated that because of Ms. A’s alleged “drink problem”, Ms A was exposing flaws in the running of the kitchen that did not need to be highlighted. She continued to accuse the family of now having a convenient person to blame for the closure order. At no point during the meeting on 12 October 2016 did the Complainant advance any perceived “lack of support and assistance given to her” during the Food Safety Authority ("FSA") inspection or otherwise during her employment with the Respondent. 

The Respondent contends that the Complainant was not entitled to terminate her employment without notice. In other words, there was no “significant breach going to the root of the contract, or which showed the employer no longer intended to be bound by one or more of its essential terms.”  

Insofar as the Complainant appears to assert that her termination of employment was caused by a series of incidents which destroyed the relationship of trust and confidence and that the “last straw” was the alleged incident of 10 October 2016, the Respondent relies on the decision of the Supreme Court in Adam Berber v Dunnes Stores Limited . In that case the Supreme Court recognised the reciprocal nature of the trust and confidence relationship between an employer and employee. The Supreme Court held that the relevant legal test in a case where an employee asserts that a series of acts seriously damaged the relationship of trust and confidence is, as follows:-

The test is objective;

The test requires that the conduct of both employer and employee be considered;

The conduct of the parties as a whole and the accumulative effect must be looked at;

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.

With reference to the “last straw” alleged incident on 10 October 2016, the Respondent relies on the decision of the UK Court of Appeal in Omilaju v Waltham Forest London Borough Council.   This decision was endorsed by the Supreme Court in Berber. The Court of Appeal held that the quality that a “last straw” had to possess was that it was “an act in a series whose accumulative effect amounted to a breach of the implied of term. The essential quality of that Act was that, when taken in conjunction with the earlier acts on which an employee relied, it amounted to a breach of the implied term of trust and confidence.” In the present situation, that legal test is not met in that the alleged incident on 10 October 2016, taken in conjunction with the earlier alleged incidents relied upon, does not amount to a breach of the implied term of trust and confidence.

It is clear from Berber that the test to be applied is an objective one. In circumstances of the present case, it is submitted that the Complainant has failed to satisfy this test. It is clear the Respondent did not repudiate the employment contract or give any indication that it considered itself no longer bound by the contract. Contrariwise the Respondent, less than one month prior to the Complainant tendering her resignation, promoted her to the position of Head Chef. As regards the nature of the Complainant’s behaviour, on a number of occasions during her employment, the Complainant behaved in an aggressive and intimidating fashion towards Ms. A and was fortunate that she was not subjected to disciplinary action in respect of such outbursts.

On no occasion did the Respondent behave unreasonably towards the Complainant. By reference to the objective, reasonable and sensible standard set out by the Supreme Court in Berber the Respondent's behaviour was not such that the Complainant was entitled to resign.

The Complainant failed to invoke the grievance procedure prior to resigning and, therefore, failed to afford the Respondent any opportunity to address and remedy the issues which she asserted, formed the basis of her decision to resign. In this respect, the Respondent relies on the decision in Conway v Ulster Bank Ltd in which the Employment Appeals Tribunal held as follows: -

“The Tribunal considers that the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints."

The Respondent further relies on the following statement of the Employment Appeals Tribunal in the case of Jabczuga v Ryanair Limited T/A Ryanair .

“The claimant in this case failed to fully engage with and exhaust the grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the respondent and the Tribunal is satisfied that she did not act reasonably in so doing. Accordingly this claim pursuant to the Unfair Dismissals Acts, 1977 to 2007 fails.”

Like the employee in the Conway case, the Complainant’s act of resigning was hasty and unreasonable and resulted in the Respondent having had no opportunity to allay her asserted concerns in relation to Ms. A’s alleged "drink problem" and her allegedly pedantic approach to recording issues on the HACCP documentation. 

In her written submission, the Complainant asserts that a number of alleged issues resulted in her being constructively dismissed, each of which is addressed below in turn:

The Complainant asserts that a number of family members were involved in running the hotel and that “there was often friction between them which caused her concern”. Firstly, in this regard, whilst it is accepted that Ms. A and her brother ran the hotel from 2011 onwards, it is denied that there was any friction between them or between any other family members, as asserted. Secondly in this regard, the Complainant fails to adduce any specific evidence of a link between any such asserted friction and her termination of her employment with the Respondent. In other words, it is incumbent on the Complainant under the UD Act to provide evidence that it was "because of" such alleged friction that she was entitled or it was reasonable for her to leave her position without giving notice to the Respondent. Thirdly, and significantly, at no point did the Complainant bring any such alleged concerns/friction to the Respondent’s attention. As such, the Respondent could not have taken any steps to address any such asserted concerns having not been afforded any opportunity to do so by the Complainant. 

The Complainant refers to an alleged incident on 6 January 2015, some 22 months prior to her resignation and contends that she did not receive any reply to her letter of 9 January 2015 in relation to this alleged incident. On the evening of the alleged incident, the Complainant ambushed Ms. A in relation to it in an extremely aggressive fashion. Such was the level of aggression during this outburst that Ms. A felt extremely intimidated. The Complainant further stated that if Mr C was going to talk to the Complainant like that, she would speak to Ms. A in the same fashion. Ms. A was taken off guard as she was unaware of any earlier incident. Following this interaction with the Complainant, Ms. A spoke with Mr. C in relation to the alleged incident and thereby attempted to ensure that such an incident would not recur. Ms. A again spoke to the Complainant around 9 pm on 6 January 2015 and explained that Mr. C was embarrassed by what had transpired. The Complainant also raised an issue at that time in relation to annual leave which was resolved by the Respondent. On 10 January 2015, the Complainant submitted a written summary of the alleged event to Ms. A. The Complainant did not request that the Respondent undertake any investigation of the alleged incident and the Respondent interpreted this document as a request from the Complainant that Ms. A note the matter, which she had already discussed with the Complainant twice. The Complainant’s summary makes clear that she has faith in Ms. A as a manger and she thanks Ms A for her many efforts to help with staff issues and the smooth running of the hotel.

The Complainant worked at the hotel on 11 and 12 January 2015 without any further reference to the incident. She was on a day off on 13 January 2015 and on duty from 14 until 16 January 2015.

The Complainant’s mother in law passed away on 19 January 2015 and the Complainant was absent from work due to the bereavement from 17 until 24 January 2015. Ms. A, Mr. C and their mother attended the funeral and the Complainant was extremely welcoming and warm towards them. The Complainant made no further attempt to pursue a complaint regarding the alleged incident on 6 January 2015 following her return to work and the Respondent considered the matter to be at an end.

Insofar as the Complainant asserts that she was entitled or that it was reasonable for her to leave her position because of this alleged incident, it is submitted that the 22 month delay in her resigning from her position renders it entirely unreasonable to suggest that the termination of her employment was, in any sense, because of the alleged incident.

The Complainant states that in January 2015 she felt that there was no communication or proper management structure in place. At no point did the Complainant raise any issue or grievance with the Respondent concerning any such perceived shortcoming. Accordingly, it is submitted that such alleged uncommunicated feelings should have no relevance whatsoever to determining whether or not the heavy burden of proof in a claim of constructive dismissal has been discharged by the Complainant.

In addition, at no point did the Complainant submit any medical certificate to the Respondent indicating that she was suffering from stress as a consequence of her work environment, nor did she advise the Respondent of any such alleged stress. Indeed, it is noteworthy in this respect that the only medical evidence proffered by the Complainant in her submission to the WRC is a letter which post-dates her resignation. As such, the Respondent is a stranger to the Complainant's assertion that she suffered any stress as a result of the workplace.

The Respondent outsources its payroll function to its accountants and occasionally queries were raised by employees, Including the Complainant, in relation to payslips. Where any query was raised, it was dealt with expeditiously by the Respondent. The Complainant largely assumed responsibility for rostering and approval of annual leave and therefore, the Respondent submits that any issues in this regard cannot form a reasonable basis for her termination of her employment with the Respondent.

The Respondent submits that the Complainant has mischaracterised the issue which arose on 10 September 2016. On that day, Mr. B raised a customer’s complaint with the kitchen. The customer had repeatedly been served his dinner with sauce despite always asking for it without sauce. Mr. B had ordered the dish on behalf of the customer and had specified ‘no gravy’, a point which had been overlooked by the kitchen. The Complainant’s brusque response to Mr. B’s complaint was that it had been ordered incorrectly, a point Mr. B was able to deflect with the evidence on the order docket. Mr. B asked that ‘somebody please’ (either Chef on duty) speak with the customer and apologise for ‘four weeks of mistakes’. The Complainant advised the customer in a barbed fashion that ‘we always put gravy on it’ and returned to the kitchen. Neither an apology nor an acknowledgement of error was offered to the customer.

On the night of 10/11 September 2016, at the end of her shift, the Complainant visited Ms. A’s office unannounced and unleashed a verbal tirade of abuse. The tirade, which proceeded uninterrupted as Ms. A was unable to interject, referred to the ‘no gravy’ incident above. The Complainant did not raise a grievance but instead demanded to know “who Mr B thought he was, the f****** p***k, coming down from Dublin and treating her like a sixteen year old.” She declared she had no intention of apologising to AB, the ‘no gravy customer’ and treated the request as a personal insult to be asked to apologise to someone she appeared to consider ‘inferior’ (repeating his name, ‘AB, AB – I haven’t a notion of apologising to that AB’).

The Respondent submits that Mr. B did not “demand” that the Complainant apologise but rather politely requested that either the Complainant or the other Chef on duty speak with the customer to apologise for the mix up in the order which had been placed by the customer. This was not an unreasonable request and is a common one in the hospitality industry.

Insofar as the Complainant states that she "got the distinct impression that the owners of the hotel were holding her responsible for the closure order”, this was not an impression which she communicated to the Respondent at that time, nor indeed one which it was reasonable for her to form. In this respect, the Respondent requested the Complainant to assume the role of Head Chef in the aftermath of the closure order. Had the owners of the hotel been holding the Complainant responsible for the closure order, no such promotion would have been offered to the Complainant at a point in time when the Respondent’s business was its most vulnerable. In addition, Ms. A held a town hall meeting of staff on 17 September 2016 and publicly and clearly endorsed the Complainant as Head Chef at that meeting. Again, it is submitted that such demonstrates the level of confidence which the Respondent reposed in the Complainant and not that it was holding her responsible for the closure order.

As regards the Complainant’s further assertion that she indicated that she would assume the role of Head Chef for a period of three months “as she was unsure that she would get the necessary support from management”, this was not a point which was communicated to the Respondent at the time she agreed to perform the role. At that time, she indicated to Ms. A that she would try out the role for three months and did not refer to any perceived lack of management support.

The position of Head Chef was not advertised until after the Complainant tendered her resignation. Insofar as it would appear that the Complainant is inferring that she was not sufficiently supported in her role as a consequence of the Respondent failing to recruit a Chef, this is denied. At no time did the Complainant raise any issue with the Respondent in relation to any perceived lack of resources in the kitchen.

In August 2016, Ms. A placed an advertised for a chef to replace an employee who was going on maternity leave. The advertisement did not yield any candidates as a result of the advertiser in question having mislaid the CV's of interested candidates. Ms. A discussed this with the Complainant at the time and the Complainant did not raise any issue with Ms. A as to lack of resources in the kitchen.
Ms. A again advertised for a chef on 21 September 2016. Ms. A and the Complainant interviewed and hired an individual arising from this advertisement. Unfortunately, the newly recruited staff member left the role after two days. Ms. A was successful in securing a relief Chef and the Complainant was aware from the first week of September 2016 that a Chef would be starting on 20 September 2016.

On 10 October 2016, the day before the Complainant tendered her resignation, an advertisement was placed for the position of Chef at the hotel in order to provide additional support in view another Chef having gone out on sick leave.

On 10 October 2016, the Complainant mentioned to Ms. A, in passing the fact that Ms. A had disposed of several portions of cooked lamb on 9 October 2016. During the cleaning of the kitchen on that evening, a staff member inadvertently left the lamb in a fridge which had been switched off for deep cleaning (and not put in the cold room as it ought to have been). Concerned about the temperature of the meat, Ms. A disposed of it and noted it in the Hazard Analysis & Critical Control Point (“HACCP”) record. In view of the closure order which had recently been imposed, Ms. A exercised great caution in ensuring that all food safety regulations were rigorously followed to minimise the risk of any further closure orders issuing.

During the discussion which took place between Ms. A and the Complainant on 10 October 2016, the Complainant suggested to Ms. A that the latter should not be so strict in her record keeping in relation to food safety. Overall, Ms. A considered this discussion was a light hearted one albeit that she did not share the Complainant’s approach to record keeping in view of the significant risk of further closure orders being issued. The Complainant was fully aware of the degree of accountability expected from the Hotel in relation to food safety. Insofar as the Complainant attributes a comment to Ms. A, the context of this alleged comment must be borne in mind. This was a particularly stressful, worrying and vulnerable period for the Hotel and Ms. A was somewhat frustrated by the Complainant’s stated approach to record keeping from a food safety perspective in view of the precarious position of the hotel.

The Complainant did not leave work early on 10 October 2016 and remained at work until her normal finish time and did not at any point attempt to discuss her perception with Ms. A that she was being blamed for the closure.

The Complainant’s asserted version of events differs in a number of material respects from the Respondent's position. In particular, the reason which the Complainant now submits as the basis for her decision to resign is entirely at odds with the reason which she advanced at the meeting with Ms. A, her mother and husband on 12 October 2016. In this regard, the Respondent submits that the reason which the Complainant advanced related to an alleged "drink problem" from which she asserted Ms. A suffered and not any perceived lack of support or management structure, as she now asserts.

Decision:

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.

Issues for Decision:

The issue for decision is whether the complainant was unfairly dismissed and, if so, the appropriate redress.

Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:

‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,’

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

Not every breach of contract will give rise to such repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

Conclusion

It is clear that the management style of the hotel impacted negatively on the complainant regarding her capability to carry out her functions and contributed to her stress on an ongoing basis. Notwithstanding the respondent’s claims to the contrary, it is also evident that Ms A was aware of this work related stress as it is referred to in her own records of meetings as is evidenced in a number of emails written by Ms A which were examined at the hearing. The complainant’s reluctance to take on the position of Head Chef other than for a short period is also evidence of her misgivings as to the support she was likely to receive.

While the incident in January 2015 is far removed from the date on which the complainant terminated her employment it is relevant in relation to the question of exhausting all appropriate avenues, such as grievance procedure, before taking the ultimate step of leaving on the grounds of constructive dismissal. In that instance the complainant did comply with the grievance procedure as outlined in her contract and reported the incident to Ms A. The complainant’s experience of the hotel management’s capability or desire to use grievance procedures was influenced by the events in January 2015 where her written complaint did not even merit a reply let alone an investigation. In light of her experience in this instance the complainant was entitled to view the grievance procedure relied upon by the respondent as meaningless. The respondent cannot rely upon the mere existence of a written grievance procedure if the respondent does not adhere to the terms of the procedure.

Accordingly, I conclude that the ‘ reasonableness test ‘ which asks whether the employer has conducted his affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer has been met.

Decision: 

I have investigated the above complainant and make the following decision in accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

The Complainant was unfairly dismissed

In accordance with s.7 of the Act, I order the Respondent to pay the Complainant:

The sum of € 31,200 (the equivalent of 52 weeks’ pay) in compensation. 

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Dated:               08 May 2017