Complainant

Respondent

Anonymised Parties

A Chef

Catering Company

Representatives

ESA Consultants

IBEC

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-00013197-001

18/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00013197-002

18/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00013197-003

18/08/2017

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

CA-00013208-001

21/08/2017

The Complainant was a highly skilled Chef working for the Respondent Catering company and assigned to the catering facility attached to a boarding school. The Complainant had nearly ten years of service with the Respondent company. The Complainant reported directly to the Unit Manager (FC) who was based in the school. Whilst the Complainant and the Unit Manager had ordinarily worked well together, they had a row in and around March of 2017 and thereafter the Complainant went out on an extended period of sick leave. The Complainant tendered his resignation in July of 2017.

In addition to giving his own evidence, the Complainant’s written submissions were entered into evidence. The Complainant understood that the burden of proof had shifted to him in circumstances where his case was one of Constructive Dismissal. The Complainant said he was not treated fairly by his Employer who failed to uphold his entitlement to be heard and dealt with in accordance with fair Procedures.

The Respondent provided me with a written submission and I heard the evidence of a number of personnel from the company including CK the Regional Manager and ML the HR Manager. The Respondent’s case was that it had dealt fairly with the Complainant who had refused to engage with it and then resigned without having clarified what his issues were.

I have carefully considered the evidence adduced over the course of two hearing dates. I found the evidence of Mr. K to have been a compelling overview. Mr. K was the regional manager and the person exercising control over the Complainant and FC from September of 2016. He had always understood and believed that FC and the Complainant had worked well together. In his evidence, Mr. K noted for example that FC had tried to secure extra work for the Complainant during one of the cyclical down periods this catering business experienced. It was only in March of 2017 that Mr. K had any inkling that the working relationship between the Complainant and FC was strained. This was when the Complainant came forward and explained that there had been a row between FC and himself and that he, the Complainant, needed to raise a Grievance.

It is common case that the HR Function had just recently gone through a comprehensive overhaul with the HR function now being primarily based in the UK headquarters with a reliance on a third party HR body becoming the normal option for dealing with dispute issues. I would observe that with a workforce of somewhere in the region of 1,800 employed in Ireland, it is difficult to see how such a long-range HR department is advantageous to the resolution of local issues. Be that as it may, in this instance Mr. K met directly with the Complainant and advised him how the Grievance procedure was intended to operate and explained that the Grievance needed to be submitted in writing.

I note and accept that the Complainant did not advise Mr. K that he had had unhappy past experiences with different workplace investigations and Disciplinary processes. This is significant in circumstances where a large part of the Complainant’s case was that he had been repeatedly let down by the workplace processes. To his mind, the Investigation and Disciplinary and Grievance procedures in this company lacked fairness and inevitably found against him. The history of the Complainant’s past interactions with such HR issues was not expanded upon. The Complainant said he had complained about FC’s manner in the past but I do accept that Mr. K was not made aware that the Complainant had had cause to complain about FC’s inappropriate comments and manner in the past and if the Complainant had felt that any such complaints had not been taken seriously, he did not say as much to Mr. K who was his line Manager’s line Manager.

The only further interaction between Mr. K and the Complainant was some months later when the Company was losing a significant Contract and the Complainant hinted that he had alternative employment with a TUSLA nursing home.

In any event, both the Complainant and his line Manager (FC) most certainly had a significant falling out with one another on or about the 14th of March 2017. The direct result of this row was that each party made a formal workplace complaint against the other. The statements taken on the day of the altercation show a significant divergence of the accounts of the interaction, and there is no doubt that the issue merited some further investigation before the question of whether or not a disciplinary action might need to be triggered against either party.

The Complainant it is noted went out on an extended leave of absence through illness from the 24th of March. I understand that the Complainant had recently had surgery and that the absence related to ongoing difficulties regarding the recovery process. In the circumstances, the Employer facilitated the Complainant.

The Complainant was asked as part of the investigation into the March 14th altercation, to attend for a meeting with a Ms. OS described as a HR Champion. At this meeting dated the 5th of April 2017 the complaints against FC are expanded upon by the Complainant who described a lot of history between the parties. None of this history was known to the Employer. The Complainant makes allegations of being ignored, laughed at and jeered. The Complainant describes FC as controlling, unprofessional, aggressive, intimidating and derogatory. The Complainant says his tasks are being taken from him leaving him on the side line. The meeting between the Complainant and OS also covered a recent issue relating to the service provided to a customer about which a complaint had been made and which had not yet been concluded. It was clear at the end of this initial meeting on April 5th 2017 that there was more for HR to deal with than had initially been thought.

It is noted that the investigation into the row between the Complainant and FC needed to be completed. Unfortunately, there was a change in personnel in the middle of the process. OS who had already requested Head Office support from the UK was moving on and ML was returning from maternity leave to take on the Irish HR function. Some time had passed to allow ML read into the papers and I am satisfied that the Employer (per an email dated the 10th of May 2017) was intent on re-calling the Complainant to a further meeting to hear the further issues raised at the first meetings and other Grievances set out in his letter of the 19th of April 2017.

I fully accept that the Complainant would have been under intense pressure at this time. In addition to the service user’s complaint having been discussed, the Complainant’s own workplace performance had been discussed during the preliminary investigation meeting. I accept that the issue of his performance had been raised by FC as part of her counter-allegation arising out of the March 14th row.

On balance, I would have to find that by the beginning of May 2017 the Employer was aware that the issues between FC and the Complainant would require additional resource and that the investigation stage was incomplete and needed further meetings. I further accept that the Employer was in a difficult position in terms of pressing on with the investigation when the complainant was out on paid sick leave arising out of post-operative “urological” problems. The Employer was obliged to tread carefully in those circumstances.

I find the unusual input of the HR shared Services body around about this time to have been unhelpful insofar as it appears to have suggested the appropriate sanction in relation to a matter still under investigation (the complaint by a child of not getting a helping of food). However, this is a side issue and has no bearing on the Constructive Dismissal as the Complainant had not seen this document and had no idea of the existence of the document before his resignation.

In May of 2017, the reason for the Complainant’s absence from work changes from Urological to “occupational stress”. It appears that the Complainant notifies this to his Employer through his representative. This same representative from a HR company additionally demands that the Employer cease all communication with the Complainant and deal only directly with the Representative. This I find to be unreasonable and I would consider that only in the most unusual circumstances could an employee out on certified sick leave make such a demand. I was not provided with any evidence to suggest that the Complainant was not fit to respond to work related matters by email.

I also reject the argument made by the representative that the Employer had been wilfully inactive, involved in “a cover up” and was on the point of being “exposed”. The shift from a medical diagnosis of “Urological” problems to “Occupational Stress” was bound to have a reaction within the workplace HR department, and to suggest that any such reaction was motivated by mala fides is not accepted by me. I would further find the threats to bring injunctive proceedings and High Court proceedings to have been unhelpful in this period of time.

There then followed a period of time when the Complainant through his representative appeared to resist attending a medical appointment. Appointments set up on the 19th of May the 26th of May were not attended. There is nothing unusual about having Employees out on long term sick leave being reviewed by an Employer nominated Doctor. I fully accept the employer’s entitlement to have an independent assessment of when an absent employee might be expected back to the workplace. I do not accept the spurious reasons given by the Complainant through his representative for not attending which only had the effect of showing an obdurate nature which was not how the Complainant presented in person.

It should be noted that by this time the Complainant’s representative had also made many and varied allegations against the Employer. These issues, which when coupled with the proposed ongoing investigation into the complaint and counter-complaint made between the complainant and FC meant that the HR department needed to get a timeline on when the Complainant would be deemed fit for the purpose of having all issues dealt with. This was all comprehensively and courteously explained to the Complainant in a letter from HR Manager LM on the 2nd of June 2017.

The Complainant did eventually get an occupational health assessment by the Respondent Doctor and the medical report emanating from that appointment (dated the 21st of June 2017) states that the Complainant’s problems relate to workplace disputes and are not medical. The Doctor accepts that the Complainant is fit to participate in any meetings which may be required for the purpose of processing and resolving these issues. The Doctor states that the Complainant will not be in a position to return to the workplace until all matters have been resolved.

On foot of this advice, the Employer on the 30th of June 2017, requests that the Complainant makes himself available on the 11th of July to agree a way forward on all issues. This was still at the point of simply starting an investigation process. Again, I see this letter as an appropriate, unhurried and productive vehicle for moving the substantive issues along. I further note that the Complainant is advised that there is a confidential Employment Assistance Programme which he was free to avail of if he was so minded.

On the 11th of July 2017, the complainant, through his representative, tenders his resignation. The Complainant personally confirms this decision having been contacted in writing by his Employer asking him to re-consider.

On balance, and having considered all the facts, I find that the Complainant’s decision to terminate his employment is not reasonable. The Complainant had not exhausted the comprehensive internal processes available to him and indeed appears to have eschewed and thwarted all attempts to have him engage with his Employer. At the hearing conducted herein, the Complainant cited many more complaints against his Employer than were known or detailed to the Employer at the time of his resignation. The Complainant had been treated with the utmost deference when out on post-operative sick leave. It was only when the Complainant ‘s medical advisor specified that the Complainant had developed occupational stress that the employer quite rightly needed to concern itself with the nature and extent of the Complainant’s Grievances and expected workplace absence. I can find nothing in the Respondent’s behaviour that merited the Complainant’s decision to resign his job of ten years.

I am satisfied on the evidence heard that the other complaints raised pursuant to Section 41 have been resolved.

I make no recommendation under the Industrial Relations Act 1969

I make no finding under the Organisation of Working Time Act, 1997

I make no finding under the Payment of Wages Act, 1991

The claim under the Unfair Dismissals Act, 1977 fails.