ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006993
Parties:
| Complainant | Respondent |
Anonymised Parties | A Head Chef | A Restaurant and Bar |
Complaint(s):
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-00009526-001 | 03/02/2017 |
Date of Adjudication Hearing: 24/10/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The Complainant commenced employment with the Respondent, a public house and restaurant, on 12th October 2015 as the head chef. On the 13th January 2017 the Complainant gave notice of resignation of his employment, the last day of employment being 3rd February 2017. The Complainant lodged a complaint for constructive dismissal under the Unfair Dismissals Acts (the Acts) with the Workplace Relations Commission (WRC) at 13.15 hrs on 3rd February, prior to commencing his final shift with the Respondent. The shift ended at 22.30hrs the same day. |
Preliminary Point:
The Respondent raised a preliminary point regarding the lodging of the complaint. The Respondent put forward that as the Complainant had lodged his Complaint Form with the WRC prior to the end of his employment the complaint was pre-lodged for the purposes of the Unfair Dismissals Act and that therefore I should decline jurisdiction in relation to the claim.
The Respondent was of the view that pre-lodged claims have no standing and referenced the High Court case of Brady v Employment Appeals Tribunal [2015] 26 ELR 1 and the Employment Appeals case of Caragh Neeson v John O'Rourke UD2049/2011 to support this contention.
The Respondent also stated that as the Complainant had not finished his employment with the Respondent there could have been some kind of reconciliation.
The Complainant agreed that he had lodged his complaint with the WRC on 3rd February at 13.15 hrs shortly before beginning his last shift. He felt he had no choice other than to lodge the complaint and did so on that day.
Findings on the Preliminary Point:
The date of termination of employment is agreed by both parties as 3rd February 2017. The dismissal claim was properly lodged with the WRC at 13.15hrs on the 3rd February 2017.
The question of jurisdiction in similar circumstances was considered by the Employment Appeals Tribunal in case of Caragh Neeson v John O'Rourke UD2049/2011. In that case the Tribunal looked closely at subsection (2) of section 8 of the Principal Act as substituted by section 8 of the Amendment Act of 1993 which provides:
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be—
(a) within the period of 6 months beginning on the date of the relevant dismissal, or
(b) if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,
and a copy of the notice shall be given by the rights commissioner or the Tribunal, as the case may be, to the employer concerned as soon as may be after the receipt of the notice by the rights commissioner or the Tribunal.
The Tribunal went on to say:
"The new subsection (2) provides for the lodging of a claim within the period of 6 months beginning on the date of the relevant dismissal as compared to the old subsection (2) which merely required the lodging of the claim “within 6 months of the date of the relevant dismissal”. The Tribunal is of the opinion that this amendment demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date."
In UD 2049/2011the Tribunal also considered the judgement of Barrett J in Brady v Employment Appeals Tribunal [2015] 26 ELR 1. In that case the employee was dismissed by reason of redundancy on 16 December 2011 and his claim was lodged with the Tribunal on 23 December 2011, which the employer contended was prior to the statutory date of dismissal when the statutory notice period was taken into account i.e. 30 December 2011; Barrett J. found that the lodgement was good. In referring to that case the Tribunal found:
" It seems to the Tribunal from a reading of Brady that the wording of the old subsection (2) was not before the High Court and there was no focus on the significance of the specific wording of the amending provision or on the intention behind it. In the old subsection the statutory stipulation was to give the notice “within 6 months of the date of the relevant dismissal” whereas the new statutory stipulation is “within the period of 6 months beginning on (emphasis added) the date of the relevant dismissal”. The Tribunal does not have the benefit of any evidence on the debate surrounding this change and what mischief it was trying to cure, before it. However, the Tribunal, focusing on the insertion of the words “beginning on” and giving these their natural and ordinary meaning, interprets the amendment to mean that a claim must be lodged after the dismissal. Thus, it finds that the claim, having been lodged prior to the dismissal, was not validly before the Tribunal. However, if the Tribunal is wrong in its conclusion on this issue it would come to the same decision by relying on paragraph 9 of Barrett J’s judgement, where he stated:
“Of course there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time period for the purposes of s.8(2).”
The Tribunal, in reaching the conclusion that the claim in UD2049/2011 was not lodged in accordance with section 8 (2) of the Acts, did note that the claim was lodged some 12 weeks before the date of dismissal, whereas in Brady and another case which Barrett J used to support his conclusions (Matthews v Sandisk UD331/2010) the claims were lodged one week and two and a half weeks before the respective dates of dismissal.
Conclusion on Preliminary Point:
In my view, the wording of subsection 8 (2), that a claim for redress may be initiated, "beginning on the date of the relevant dismissal", allows that a properly lodged complaint made on the date of a dismissal is good.
In UD2019/2011 the Tribunal highlighted the fact that the complaint in that case was lodged some 12 weeks in advance of the actual dismissal indicates that such a time span is not reasonable and falls outside the boundary. In Brady the complaint which was allowed stand was lodged one week before dismissal. In this instance we are looking at a lodgement made only a matter of hours in advance of a termination of employment.
Although some "boundary in time", as enunciated by Barrett J, is required, I do not think a boundary of only hours, could be deemed to be fair to a Complainant.
At the hearing the Respondent hypothesised that some sort of "reconciliation" could have taken place in the hours between the complaint being lodged with the WRC and the end of the Complainant's shift. In the circumstances where the Complainant had worked through three weeks' notice, with no attempt at reconciliation being made, such a hypothesis seems somewhat improbable.
Taking into account all of the above, I am of the view, that lodging a complaint with the WRC on the date termination of employment takes place is in accordance with section 8 (2) of the Acts and therefore I have jurisdiction to hear this claim.
Summary of Complainant’s Case:
The Complainant stated that in January 2017 he was called to a meeting with the Respondent. He was told at this meeting that a chef who had formerly worked in the establishment and left on bad terms was coming back. Even though this chef was going to report to the Complainant he was not happy with this chef's return. Subsequently another head chef who had left the establishment returned to work on the opposite shift to the Complainant. Again the Complainant was not happy with the return of this head chef as he felt it was being done in an effort to push him out the door. The Complainant got an offer of a job in January but when the potential employer sent a form to the Respondent regarding the move the Respondent refused to sign it thus stifling the opportunity to take up the job offer. Following his departure from the Respondent's employment the Complainant got a temporary position in the second week of February and subsequently got permanent work as a head chef in another establishment. When asked why he had never raised a grievance with the Respondent the Complainant stated that he could not talk to him. The Complainant agreed that he had never engaged in a grievance process regarding his perceived problems at work. He did put forward that his role in making out duty rosters had been removed from him and this was tantamount to removing his manager status.
The complainant denied his resignation had anything to do with a forthcoming inspection. He resigned because he had got a job offer. He only worked out his notice period as he could not afford to do otherwise from the financial perspective. When asked to explain why he had not raised a grievance the Complainant stated that he "wasn't given a choice", that his employer expected him to walk out the door. He had not seen any merit in sending an email about his grievance, there was "no point". |
Summary of Respondent’s Case:
The Respondent provided a detailed written submission. The Respondent submits that the claim cannot succeed in circumstances where the Complainant has not exhausted, or even engaged with, the internal grievance procedures. The Respondent explained that the Compliant commenced employment as head chef on 12th October 2015 and on 4th August 2016 was issued with a Statement of Main Terms of Employment and a Company Handbook. On 2nd January 2017 the manager of the establishment became concerned about the restaurant's gross profit margin and spoke to the Complainant about this matter. The manager was surprised by the Complainant's rather blasé attitude towards this serious matter. Regarding the employment of staff the Respondent submits that although the Complainant would have been consulted about such matters ultimately it was for the manager to decide on the employment of staff. Following a separate complaint to the WRC the Respondent undertook a review of its working time procedures and it was decided the manager should take charge of rosters to ensure compliance with the Organisation of Working Time Act requirements; this, according to the Respondent, did not undermine the Complainant. On 12th January another meeting was arranged to discuss the gross profit margins. Later that day the Complainant tendered his notice of resignation. The notice did not give any indication of a grievance or dissatisfaction on behalf of the Complainant. The Complainant agreed to work his full months' notice prior to terminating his contract. The Complainant worked out his notice without any further comment or event. The Respondent submitted that the Complainant has not established that he has been constructively dismissed by virtue of the conduct of the Respondent on the basis that he has not satisfied the burden of proof that is placed on the Complainant in respect of a claim of constructive dismissal. |
Findings and Conclusions:
The key facts were not in dispute in this case. The complaint is one of constructive dismissal. The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract. In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings. It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise. When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter. In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340): "There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints." The Supreme Court has said that; ‘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.’ Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61 In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment. In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. In this case the Complainant did not dispute that he had been given a copy of the grievance procedure. Looked at by reference to either of the above tests the complainant does not come anywhere close to the burden of proof necessary to ground his case. His resignation without reference to the company procedures is fatal to his case on these facts. The EAT has made it clear in a series of decisions, and followed by the Adjudication Service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above) For example, in Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268 ‘The Tribunal finds that the claimant do not give her employer an opportunity to deal with her complaints. The Tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her." And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated; "For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However for a period of six months she did not attempt to resolve the issue." In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed. Even by applying the ‘Berber’ test to the Complainant’s conduct alone the case would be in difficulty. The Complainant's failure to avail of internal procedures to establish his role and status, or complain about his perceived undermining renders the complaint devoid of any merit. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
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Dated:
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words: 21 February 2018
Constructive Dismissal, Notice, Date of lodging |