ADJ-00007642

Complainant

Respondent

Parties

A Night Manager

A Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010255-001

15/03/2017

This case concerns a dispute in relation to a worker who claims to have been subjected to bullying and harassment in the workplace by management and that he was ultimately forced to resign his position. The dispute was referred to the Director General of the WRC in accordance with the provisions of Section 13 of the Industrial Relations Act, 1969.

The Complainant commenced employment with the Respondent in May, 2009 and was working as a Night Manger when he was left with no option but to resign from his employment on 21^st October, 2016.

The Complainant contends that the Nights Team was supposed to comprise of a Night Manger and three staff. However, he claims that the full complement of staff was rarely available to him. The Complainant contends that he had an extremely heavy and overbearing workload and was expected to carry out the work without sufficient resources of staff.  

The Complainant claims that he was subjected to extreme pressure by management, both physically and mentally, in relation to the discharge of his duties. He contends that condescending e-mails were sent by management while he was off duty enquiring as to the reasons why work wasn’t carried out in his presence on the night shift. The Complainant claims that he suffered anxiety as a result of this treatment by management and contends that it amounted to bullying and harassment against him in the workplace.

The Complainant claims that he indicated to management that he wished to try and “get off” nights and secure a day-time position at the hotel. However, the Complainant contends that Management indicated it would try and accommodate his request for alternative day-time work but failed to take any action.

The Complainant also claims that he attempted to invoke the Respondent’s internal grievance procedures in relation to the alleged bullying and harassment but management failed to take any appropriate action.

The Complainant claims that he was left with no alternative but to resign from his position at the hotel as a result of the treatment to which he had been subjected during the latter stages of his employment.

The Complainant contends that he was constructively dismissed from his employment and that the dismissal was unfair.

The Complainant commenced employment on 20^th May, 2009 working as a Night Porter and progressed to the position of Night Manager and held this position for a number of years. His hours of work were 11 pm to 7 am, five out of seven days. As Night Manager, the Complainant had responsibility for a team of three people and this involved the day to day management of these individuals including dealings with grievances they may have.

On the 21^st October, 2016, the Complainant was due to attend for his shift as Night Manager. At 22:11 he sent an e-mail to seven employees including the General Manager to advise that he was terminating his employment. This decision had been unforeseen by the company.

The Respondent strongly disputes the Complainant’s contention that he had been receiving condescending e-mails sent whilst off duty as to why work wasn’t carried out during his presence on the night shift. The Complainant worked as Night Manger and the procedure would be for the various managers to e-mail items for the handover to the Complainant and his colleagues. All of the e-mails that were sent regarding outstanding items that had not been completed on the night shift were sent to the Complainant and other members of the Night team. These e-mails would have been sent during the morning, afternoon or evening when his other colleagues were on duty and would not have required a response until the Night team came on duty.   As a Head of Department, the Complainant would have had remote access to the e-mail account but there was no requirement for him to respond during out of hours.

The company sent the Complainant to attend the Occupational Physician on 3^rd May, 2016. This procedure was introduced into the company during 2016 and is now a standard for all employees who are engaged in night work within the hotel. The Occupational Physician forwarded a fitness for work certificate to the company on the same day and stated that the Complainant was fit for work. At no time were any concerns raised about the Complainant being under pressure of work.

The company have a grievance procedure and a bullying and harassment policy in place and the Complainant was fully aware of these policies. Indeed, as a Head of Department it was a key part of the Complainant’s duties to be familiar with company policies. In this instance, the Complainant did not utilise the grievance procedures nor did he instigate the bullying and harassment policy.

The Complainant resigned from his position within the company and did not give any of the reasons at that time for which he has stated in his complaint form to the WRC some five months later as a reason for the departure.

The company is a seven-day week, twenty-four-hour operation on a large scale of a hotel and country club. It is imperative that they have an open and transparent communications line with all managers and teams. Therefore, it is imperative that for those employees who are working nights that the only time that many of their colleagues will have the opportunity to update them, send queries etc. will be during their own working hours and not the Complainants. These e-mails would have been awaiting the Complainant and his team (as the e-mails were sent to all of the night team) for handover or a response. Especially in the case of where work has been checked off as having been completed and the early morning manager finds to the contrary which would greatly upset guests arriving in the morning or alternatively where the night team have forgotten to check the guests to the appropriate rooms. There was no request for the Complainant to respond to any of these e-mails during non-working hours even though he had access to the system remotely.

The Complainant has also referred to the fact that he was overburdened and was without the proper resources of staff. The company refutes this claim. The Night Team comprises of a Night Manager and three employees. There was never an issue about staffing levels on nights and should extra resources be required due to cover for annual leave etc. this would have been supported. Indeed the Complainant responded to the General Manager on 17^th June, 2016 in respect of a general e-mail that had been circulated that annual leave should be used up throughout the year and not left towards the end of the year, that his team were organising leave and that until a colleague was taking annual leave in August that there was no requirement for additional cover.

The Complainant has also stated that he had discussed possible day shift work with no result. This discussion took place with the General Manager and the HR Manager at a meeting in July, 2016. The Complainant was advised that any opportunities that would arise would be advertised internally in line with company policy and he would be welcome to apply for them. Up to this point the Complainant had not previously applied for Duty Manager positions that had arisen which would have been on day shifts albeit 7 am to 3 pm and 3 pm to 11 pm on rotation. Therefore, it is inaccurate to state that there was no result on a discussion as this had taken place during the course of a meeting and the Complainant did not wait for an opportunity to arise before he resigned from the business.

In summary, the company submits that the Complainant resigned of his own volition from his position and it is disputed that he was constructively dismissed from his employment.

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and concerns a claim of constructive dismissal. The Complainant commenced employment with the Respondent on 20^th May, 2009 and resigned his position as a Night Manager on 21^st October, 2016 after allegedly being subjected to bullying and harassment in workplace and having to deal with an excessively pressurised workload.

I am satisfied that this case may be informed by the Unfair Dismissals Acts in respect of constructive dismissal cases.

The term “constructivedismissal” is not specifically mentioned in the Unfair Dismissals Acts. However, it is a term commonly understood to refer to that part of the definition in Section 1 of the 1977 Act. The burden of proof in such cases, which is a high one, rests with the Complainant.   The Complainant must demonstrate that he was justified in his decision and that it was reasonable for him to resign his position. The Complainant must also demonstrate that he had no option but to resign.

The Employment Appeals Tribunal held in the case of Michael Murray -v- Rockabill Shellfish Limited[1]that “A constructive dismissal will occur when an employee terminates his contract of employment where, because of the employer's conduct, the employee was entitled to terminate his contract without notice or where it was reasonable for him to do so. It has been well-established that a question of constructive dismissal must be considered under two headings: entitlement and reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by an employee and all other reasonable options, including following the grievance procedure, must be explored. An employee must pursue his grievance through the procedures laid down before taking the drastic step of resigning.”

The Complainant adduced evidence that he was overburdened by an excessive workload and that he was not provided with adequate staff resources to carry out the work. He also contends that management sent him condescending e-mails whilst off duty questioning why work had not been carried out during his presence on the night shift. The Complainant further claims that he was left with no option but to resign from his position as a result of management’s failure to address these issues. The Respondent disputes the Complainant’s evidence on this matter and contends that it was normal procedure for the various managers within the hotel to exchange e-mails with the Night Manager and Night Staff in relation to outstanding items of work that needed to be addressed in terms of the changeover in shifts. The Respondent refutes the Complainant’s claim that he had an excessive workload or insufficient staff resourses.

Having regard to the evidence adduced, I prefer the Respondent’s evidence on this matter and I find that the Complainant had failed to adduce any cogent evidence from which I could reasonably conclude that his working conditions became so intolerable that it was reasonable for him to terminate his contract of employment.

I find that that the Complainant has failed to adduce any coherent evidence to suggest that he attempted to take appropriate measures in terms of raising the alleged issues with the Respondent in relation to the excessive workload and lack of staff resources. I have found the Respondent’s evidence on this issue to be more persuasive and I accept that there were adequate staffing resources made available to the Complainant to discharge his duties as Night Manager.

It was not in dispute between the parties that the Complainant was working in a very busy hotel and that there was a requirement for effective communications between management and staff. I find that that it was part of normal procedures for management to engage in the exchange of e-mails to facilitate the handover of work between the night and day staff. I find that the Complainant has failed to adduce any compelling evidence which would lead to a conclusion that he was subjected to bullying and harassment in the workplace in terms of these e-mails.

I note that the Respondent had established internal grievance procedures in place to deal with bullying and harassment in the workplace. I am satisfied that the Complainant was fully aware of the existence of these procedures, and that as a Head of Department, there was on obligation on him to be familiar with these procedures.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to invoke these internal procedures to try and resolve the alleged workplace bullying and harassment before taking the step to resign from his employment. Based on the evidence adduced, I do not accept that the Complainant sought to invoke the internal grievance procedures in relation to the alleged bullying and harassment which he contends took place in the workplace.

In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was such that he had no option but to resign his position. I find that the Complainant did not give the Respondent an opportunity to address his concerns before taking the decision to resign from his employment.

I find that the Complainant has not established a case that he had no option but to resign his position. Accordingly, I find that the Complainant was not constructively dismissed from his employment.

I find that the complaint under Section 13 of the Industrial Relations Act, 1969 is not well founded. Accordingly, it must fail.

Industrial Relations Act, 1969 – Section 13 – Bullying and Harassment - Constructive Dismissal – Complaint not upheld