Complainant

Respondent

Anonymised Parties

A Coffee shop Manager

A coffee shop owner

Representatives

Aisling McDevitt 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-00019408-001

24/05/2018

The Respondent Company owns and operates a number of well-known food and café chains or franchises and operates a significant number of outlets nationwide.

The Complainant has worked with this Respondent for upwards of 9 years and worked her way up to personally managing up to three cafes in the County Dublin area. The Complainant’s employment terminated on the 22nd of May 2019. The Complainant says she was constructively dismissed

The Complainant says that she was being unfairly treated by her new Area Manager who she says imposed a severe sanction in relation to an issue which had occurred under her previous Area Manager who had not at the time seen the need to trigger a disciplinary process. The Complainant says that the new Area Manager criticised her work and suggested that she was so overwhelmed by parenthood that he felt compelled to call into question her competency and efficiency in the workplace.

The Complainant says that the Area Manger effectively cornered her into accepting that she would tender her resignation by wilfully interpreting an innocent request to use him as a referee as a signal or notice of her imminent departure. The Complainant says she subsequently recoiled from this proposition (by way of a text message), but after meeting with her line Manager on the same day she formally tendered her resignation feeling she had no other option.

The Respondent was ably represented and I was provided with submission and much of the relevant documentation. The Respondent position is that the Disciplinary sanction was warranted and of such narrow scope as to have no bearing on the Complainant’s day to day ability to perform her work, free from concern. A number of witnesses gave evidence on behalf of the Respondent, and their evidence was tested by the Complainant. The Respondent case is that as per her Contract of Employment the Complainant confirmed verbally that she was leaving her place of employment and that she and her line Manager had agreed a Notice period to be worked out. Steps were taken to replace the Complainant. The Respondent denies there was any particular issue between the Complainant and her Line Manager save insofar the Complainant would be expected to follow instruction in the normal way. The Respondent placed emphasis on the fact that in any event the Complainant was highly thought of by Management and any approach with any Grievance would be met with a positive and professional response. The Respondent Manager acknowledged that the Complainant appeared to withdraw her decision to resign but that when he requested that she put her reasons for withdrawal for the Company’s consideration that she proffered her resignation once again.

The Respondent name, for the purposes of this decision, is amended to read Altercin Liffey ULC as being the agreed Employer and the name is amended pursuant to application made by the Complainant pursuant to Section 39(2) of the Organisation of Working Time Act:-

39 (2) A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

I have carefully considered the evidence adduced in the course of two days of hearing herein. The Complainant had worked for nine years with the company which owns and operates a number of coffee houses across the capital city. By 2017 the Complainant was a store Manager for one district and was overseeing the running of three or four cafes. The Complainant has had no disciplinary issues and worked well and was highly thought of within the group. The Complainant’s previous Line Manager SJ gave evidence of how effective and trustworthy the Complainant was. This was echoed by the Operations Director (EC) who oversees over 100 units.

At the beginning of December 2017 SJ announced that she would be leaving the District and be replaced by Mr. P. This did not initially cause the Complainant any reason to be alarmed as he had worked with Mr. P in the past.

On the 18th of December the Complainant did an unusual thing when she communicated directly with the Payroll department to get the name of one of her subordinates included for a small payrise. It is common case that this was a step she had no authority to take. The evidence clearly demonstrates (together with the recognised practise in the company) that the line Manager could not sanction this raise and that the final say so rested with EC the operations Director. The Complainant knew this before she emailed the payroll department.

I would have to note that the complainant had no personal gain at stake (save insofar she wanted to retain a valued member of staff) and there was no concealment as SJ the line Manager had been cc’d. SJ did come back to the Complainant on the 21st and pointed out the approval had yet to be obtained. Nothing in SJ’s email correspondence tended to suggest that the Complainant was in trouble over this and I do not doubt that no sanction was to be taken until the matter arose again in January 2008 when Payroll contacted the now new Area Manager Mr. P questioning the status of the proposed payrise. In her evidence SJ stated that she had assumed that the Complainant would have contacted Payroll to reverse the direction she had given on the 18th of December, though I would have thought she might have explicitly directed this or simply done it herself. After all, communicating directly with payroll was one of the criticisms being levelled at the complainant.

Mr. P says that he (together with nebulous others) made a decision that he would have to address this issue with the Complainant. He saw the Complainant’s communication with payroll as having been outside of the scope of her role and inappropriate. In general terms, I have no difficulty with this conclusion having been drawn though I think the lack of forewarning or communication with the Complainant to have been a gross misapplication of proper procedures. The Complainant was called to the meeting, told she had been found wanting and advised she would be sanctioned. The final sanction was very serious as it amounted to a final written warning though each of the Respondent witnesses tried to minimise it’s effect by pointing to the narrow scope applicable. I also note that the sanction related to the act of contacting the payroll and not to the failure to reverse that communication. As I have said SJ’s communications (including smiley face), in this regard did not suggest there would be any form of reprimand or discipline.

I was surprised that on Appeal, a more appropriate sanction was not applied as I found the lady who heard the Appeal MK to have been reasonable person who tentatively recognised the failings of the Disciplinary stage when she accepted:

“you are concerned that you didn’t get an opportunity to defend your case? This is your opportunity to do it now”

On balance (and even in light of the neutral evidence offered by SJ) I am accepting the Complainant’s evidence that Mr. P’s arrival into her working life created upheaval and negativity. It is not acceptable that an employee should be put on some sort of timer in a meeting situation. I fully accept the evidence that Mr. P (presumably in some effort to be seen to hit the ground running) was highly critical of her work and her output and that he assigned her tasks away from her.

Mr. P clearly feels that he was doing his job. However, his management style was so entirely and abruptly different to SJ’s, that it does not surprise me that the Complainant felt on the back foot. I accept that this new management style coupled with the unexpected Disciplinary process for a misdemeanour that had happened on someone else’s watch, had the Complainant questioning her future with the company.

There then followed the situation with the resignation/non-resignation. It is tempting to believe that Mr. P simply latched on to the Complainant’s request that he act as her referee as a way of getting rid of the Complainant. On balance, however, I do not think this is what happened. It is difficult to know though how a conversation requesting a referee which transforms into a conversation about working out a Notice period has not had some sort of tentative resignation at it’s root. I believe that the Complainant was considering leaving though I do not think that she had been offered anything firm and commensurate with her then position, and I think that Mr. P brought an unnecessary amount of pressure on the Complainant to bring her employment to a close. I believe it was somewhat previous of Mr. P to start rolling out an advertisement campaign for her replacement when the time and manner of the departure, if any, had not been decided.

I think the language   contained in Mr. P’s text wherein the company will consider her reasons for not departing is not the language an Employer would use in connection with a valued employee. On balance, I accept the truth of the Complainant’s text dated the 8th of May where she acknowledges that a confusion has arisen and that her request for a reference was not an imminent resignation and to my mind it never amounted to anything more than a marker that she may move on in due course.

Mr. P went out to the Complainant in her workplace on the 8th of May. He says to clarify what she was doing – staying or going? I do not know what possessed the Complainant to hand in her resignation formally on that date and in this meeting, though I would have to suggest that any letter of resignation which cites stress would be a classic situation where a “cooling off period” should be adopted by a reasonable employer. This did not happen, and instead Mr. P appears to have rejected the letter of resignation which is dated the 8th of May and operated to affect a purported resignation which arose out of a conversation and which did not include a specific resignation and which the Complainant had already specifically rejected as intending to have that effect. This has added a further layer of confusion to matters.

Rightly or wrongly this matter was heard as a Constructive Dismissal arising out of the letter of 8th of May 2018 (though an Unfair Dismissal simpliciter might also have been arguable as the Complainant appeared to withdraw the resignation being relied upon). At this time I have to consider if the Complainant is correct in claiming this was a Constructive Dismissal where she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate her employment or it was reasonable for the Employee to terminate her employment (as defined in Section1 of the Unfair Dismissals Act 1997).

The Respondent has urged upon me to take into account the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v-     Ulster Bank Limited Wherein the Tribunal stated:

“The Tribunal considers that the Appelant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appelant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible.”

Having considered all the evidence herein I am satisfied that the Complainant was Unfairly Dismissed with the dismissal happening on the 22nd of May. I am satisfied that Mr. P’s actions overwhelmed the Complainant who felt forced to resign on the 8th of May her previous attempt to clarify she had not formed an intention to leave having been in effect rejected by the Employer.

In considering compensation I am bound to take into account the fact that the Complainant did not go over the Area Manger’s head, and seek the assistance/intervention of senior Management. I am reasonably sure that a Grievance raised with SJ or EC would have met with concern as the relationships each of them had with the Complainant appeared good.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00019408-001

- I find the Complainant was Unfairly Dismissed and award €8,000.00 compensation.