Complainant

Respondent

Anonymised Parties

A Worker

Food Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009671-001

13/02/2017

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

CA-00009671-002

13/02/2017

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

CA-00009671-003

13/02/2017

The claimant was employed as a Chef with the respondent from the 18th.Dec.2009 to the 26th.August 2016.In her complaint form she submitted that “ I left my job on the 23rd.August due to ongoing difficulties with my fellow employee. I went to the doctor and was certified as unfit for work for a number of days. I handed this sick certificate to my manager on Wed.24th.Aug.I explained the difficulties at work. My sick cert would have expired on Friday 26th.August 2016.I went into work on that date to confirm whether I was working on the Saturday or the Monday .I was informed by the manager that he will have to speak to the overall employers and come back to me. At the same time I was handed a letter terminating my employment. I never heard further from my manager or employer”.

The claimant complained that she never received written terms and conditions of employment and contended that she was never furnished with the contract submitted into evidence by the respondent. She asserted that she asked for a contract of employment after returning from an extended period of sick leave but was never furnished with same. Her representative argued that there was nobody present to give evidence to dispute the claimant’s account of non compliance with Section 3.

The claimant complained of constructive dismissal and/or unfair dismissal.

She set out her account of her exchanges with the Head Chef Mr.D on the 23.08.16.She stated that he complained about the deserts she had made , the onion marmalade and her failure to follow his recipes. She stated she left the kitchen very upset , told Mr.D she wanted to go on holidays because he was stressing her. She stated she was on tablets for 5 days and returned to the premises on the 24.08.16. She asserted that she told the GM that she wanted to apologise and would return to work after her sick leave. She contended that she apologised to Mr.D and Mr.K. The claimant confirmed that she never made a complaint about the Head Chef to the GM. Under cross examination the claimant confirmed that she had received the letter of the 18.05.16 recording a verbal warning and setting out required improvements in performance.It was put to her that it was clear from that letter that if she had issues with the Head Chef she could have raised them with Mr.K.The claimant asserted that when the Head Chef complained about her work she asked him to show her the correct way but he never had any time to do that. She stated that the respondent did not have a pastry chef and that deserts were not in her section.

The claimant set out her account of the exchanges with the Head Chef on the 23.08.16 – she said to him I am going on holidays and when he refused she said I quit.The claimant insisted that she returned to the premises the following day to apologise and offer to work in the wash up area. The claimant contended that she did not attend Social Welfare until after she received her P45 and the letter confirming the “ acceptance of her resignation “ on the 26.08.16.

It was submitted that the claimant was unfairly dismissed as the respondent had nt followed any proceedures , had not heard the claimant’s version of events and was under an obligation to do so.It was argued that the dismissal was consequently unfair.It was submitted that the claimant had obtained alternative employment and that the monetary loss incurred by her following her dismissal was €1,680.

The respondent denied any breach of the Terms of Employment (Information) Act 1994 and asserted that they had met their obligations in full under Section 3 of the Act. A copy of terms and conditions of employment signed by the former employer in 2014 was presented – it was submitted that it was a matter for the claimant to explain why she never signed this document .It was asserted that the document was on the claimant’s personnel file.

The respondent denied the allegation of unfair dismissal – it was asserted that the claimant made no complaint to the manager to allow investigation of any alleged complaints and it was submitted that the claimant left the employment without notice or without making any effort to enquire into the company grievance procedure. It was submitted that the grievance procedure was clearly visible in the manager’s office and a photograph of its location was submitted into evidence.

It was submitted that the Head Chef would confirm that the working relationship with the claimant was difficult owing to her inability to follow orders .It was submitted that the claimant was not a qualified chef and that if she had an issue with the way she was dealt with by the Head Chef she could have invoked the grievance procedure. It was submitted that having walked out on the 23rd.August and making it clear she was not returning , the claimant came back on the Friday (26th.Aug.) claiming she was entitled to return and presenting a sick certificate from the 23rd.-25th.August.

It was submitted that had the claimant had a row with the Head Chef she could have returned the following morning “ with an apology and at that stage management may have looked at the situation in relation to her overall role within the organisation”. It was submitted that she made it quite clear to all employees that she was leaving “ both by her statements and by discarding her work outfits in the presence of other employees”.

The provisions of UD 1635 , ADJ 2729, UD85610 were invoked in support of the respondent’s contention that the claimant was obliged to exhaust internal procedures prior to terminating her employment.

In his direct evidence the Head Chef Mr.D confirmed that the claimant was off sick when he commenced employment with the respondent .He acknowledged that the claimant was a hard worker but asserted that she was headstrong and challenging to work with – he outlined a number of issues he had raised with her about her performance culminating in the issuing of a verbal warning which she did not appeal- the warning was issued on the 18th.May 2016.Mr.D stated that he had 17 years experience as a Head Chef and that the claimant was not used to and did not follow procedures or confirm when and if she had completed a task. When she returned to work after an extended period of sick leave (9months) she sought a pay rise and flexibility around rosters to enable her to walk her dog. He complained that the claimant had a propensity to waste food and did not adhere to recipes as required. Mr.D asserted that when the claimant was challenged about her performance deficits she invariably blamed other staff and did not accept any responsibility for same .He described the events of the 23rd.Aug. 2016 where he was unhappy with her work and in particular her failure to follow his recipes. He asserted that in the middle of lunch service the claimant stated “ I am taking my holidays now and I am not coming back ,I quit”.He asserted that the following day she arrived at the premises at 13.30 , asked for a translator and stated that she was coming back to work on Friday.A dispute ensued when he advised her that she had been replaced- she got upset and he directed her to raise her issues with the General Manager Mr.K. Mr.D asserted that the claimant had let him down in the height of the summer during their peak period. He said he had a service to run and that if you are gone, you are gone.

The general manager Mr.K stated that the claimant had never expressed any issues about being unhappy at work or about the Head Chef – he stated that she may have been put out about the new recipes and procedures that had been put in place while she was on sick leave. He emphasised that he had kept the claimant’s job open for her while she was on extended sick leave and that when she resumed work she sought to dictate a rota that suited her to accommodate her dog walks He stated that his recollection was that the claimant’s walk out took place in the early part of the day – he expected she might return the following day. He asserted that other staff confirmed that the claimant said that she quit and walked out. When she approached Mr.K about the dispute with Mr.D , she said it was all a misunderstanding ; he asked her for an explanation for the misunderstanding and she did not have one and she did not reply when he asked her why she did not approach him about the conflict. He told her that she had left them in a very difficult situation and they had to recruit someone- he asserted that she stated she would do wash up and would return to work on Friday .When he indicated that he would have to seek advice because she had quit , he alleged that she said if she was not allowed back to work she would sue them again.

Mr.M asserted that the claimant had every intention of leaving her job on the 23rd.August 2016 but changed her mind when she learned of the difficulties she might encounter with Social Welfare. He contended that he found the claimant aggressive and threatening and did not consider it appropriate that she could get her job back. He contended that the claimant was looking for an excuse to walk off the job and that if she had come back the following day there would have been no issue.

It was submitted that there was a grievance procedure in place and the claimant had failed to utilise it. It was argued that the claimant had chosen not to make a complaint. The claimant did not appeal the warning of the 18.05.16 and had been in receipt of legal advice. It was submitted that if the employee had issues , she chose not to raise them and she made it quite clear to the respondent that she was leaving.