Complainant

Respondent

Anonymised Parties

A bakery worker

A bakery Company

Representatives

The Complainant was accompanied by an interpreter.

John Barry Management Support Services (Ireland) Ltd

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-00016208-001

07/12/2017

The Complainant was employed by the Respondent in the confectionery department of the Respondent’s bakery. He commenced his employment with the Respondent on the 13th May 2013. He says that he was dismissed through Constructive dismissal and he resigned his position on the 9th June 2018.

The Complainant says that he commenced his employment with the Respondent on the 13th May 2013. He received training and became a pastry chef in the Respondent’s bakery. He says that this business was all new to him but he learned quickly.

He worked the night shift from the commencement of his employment with the Respondent.

He says that after about 6 months he began to experience problems at work. He says that he felt less favourably treated than other employees in terms of the work required of him. As example he says he was required to work in the freezer area more than others. He says also that he was required to complete end of shift production paperwork while others were not.

When he commenced with the respondent he reported to a foreman, with whom he had a difficult relationship who, he said, added on tasks to his daily list of to-dos, to a greater extent than to any of the other employees. He said in this he was treated differently to other employees. He says that all of this came from his chargehand and as a result the relationship deteriorated.

In November 2015 the manager of the area left the business and his chargehand was promoted to the manager role.

Shortly after this he says that he requested to meet with the owner of the business to discuss his grievances which were two mainly. Firstly he had no relationship with the (now) manager of the area he worked in and asked for a change to another shift. He says that he was the only employee working the Sunday shift. Secondly there were regular requirements from the manager in the way the cakes were presented. He says he had learned all the recipes and that these changes simply made the work more difficult for him.

He had a further, and as it turned out, final meeting with the owners, on the 8th June 2017. He again requested a change to another shift, but this request was refused. The claimant resigned his position the following day. The 9th June 2017. He says he no longer trusted the employer to look after him because they refused to take on board his reasonable request for transfer away from the manager with whom he had such a poor relationship. He says that working in that environment caused stress, that he brought home with him. He was left with no alternative but to resign.

The Respondent says that the Complainant joined the company on 13th May 2013 and worked the night shift as part of his normal working hours and the hours normal for the industry.

The Complainant had worked with a number of managers since he started work with the Respondent company and with his current supervisor since 2015.

The Respondent says that the Complainant had shown himself to be a good worker and there was no cause to discipline him, for any reason, up until 2017. At that point, the Respondent says, it became clear that there were issues arising in relation to the Complainant’s work performance. These were brought to light by the supervisor saying to the owner that he had to have a number of conversations with the Complainant about these difficulties. The supervisor had subsequently committed these to writing. These difficulties being experienced with the Complainant related to:

·         His failure to follow direct instructions,

·         Leaving work without completing his normal hours and daily tasks,

·         Showing a bad attitude towards both his work and other employees,

·         His unacceptable timekeeping and use of bad language and

·         That his treatment of his supervisor caused the supervisor to regard this treatment as “frightening”.

On foot of these complaints from the supervisor the owner of the business invited the Complainant to a meeting on 26th May 2017. The complainant had been advised that this would be a disciplinary meeting and that he should bring a colleague with, him if he wished.

In response to this they say that the Complainant submitted a list reasons influencing his behaviour:

·         Difficulties outside work in his personal life

·         His mother was ill,

·         He did not like his work,

·         He was not getting days off from work, during the week

The remainder of the meeting changed to one where the Owner of the business endeavoured to try to establish why these problems were being experienced by the Complainant.

The Complainant went on to say, at the meeting, that he did not wish to work with his manager as he says that the manager “made him feel bad”. When asked how this arose he replied that the manager was never happy and was too serious.

When the owner pursued this in an effort to arrive at a situation where the relationship would improve, the Complainant said that he was not prepared, in any circumstances, to work with his manager and that if he was not moved to another section of the bakery he wanted his P45 as he was leaving the business.

The Respondent goes on to say that the Complainant clearly regarded himself as the expert in the department in which he worked and refused to take instruction from his manager even when this required change to the manner in which the cakes being produced required finishing changes required by the customers. They say that he also advised other workers in the area not to follow the instructions of the manager.

They say that, in respect of days off during the week, they had advised that they would facilitate the Complainant with Tuesday off as requested, when another employee returned from illness absence.

The owner then checked around among other supervisors in relation to their perception of the relationship between the Complainant and his manager. All supervisors confirmed that it was clear to them that the Claimant was deliberately ignoring the manager and causing him difficulty.

They say that notwithstanding this the owner arranged a meeting for the 8th June 2017 inviting the Complainant and his manager. They say that the Complainant was absent from work on Sunday the 4th and Monday the 5th of June 2017, without notification, as required, and he was then advised that these absences would be on the agenda of the proposed meeting.

The owner, nonetheless, said that the primary purpose of the meeting was to see what could be done to have the Complainant and his manager work well together. The complainant raised issues such as an increase in his pay and days off during the week. The owner said that he would look at these issues to see what he could do. They say when they returned to the working relationship issue between the Complainant and the manager, the Complainant said that if he could not be moved off his current shift he wanted his P45 and was resigning from the company.

The owner asked that he consider his position over the following 24 hours and return to the discussion.

The Complainant resigned his position, in writing on the following day, the 9th June 2017.

He submitted his claim subsequently to the WRC under Section 8 of the Unfair Dismissals Act, 1977, claiming Constructive Dismissal.

The Respondent in his submission makes a number of points in relation to the relevant law and case law governing cases such as this:

·         Section 1 of the Unfair Dismissals Act, 1977 defines Constructive Dismissal as “the termination by the employee of his contract of employment with his employer, where the prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

·         The Respondent goes on to say that the onus of proof is on the Complainant to establish the   facts to prove that the actions of the employer were such as to justify the Complainant terminating his contract of employment.

·         The Respondent in reference to case law on the issue says that for a resignation to be considered a constructive dismissal, it is necessary to establish that the employer’s conduct amounted effectively to a repudiatory breach of the contract of employment in such circumstances that the employee was entitled to resign their position.

This is referred to as the “contract test” and this requires the employer to be “guilty of conduct which is a significant breach going to the root of the contract of employment or would show that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” – Western Excavating (ECC) Limited v Sharpe, 1978.

The other filter test is the Reasonableness Test, “where the employer conducts himself in his affairs in relation the employee so unreasonably that the employee cannot be expected to put up with him any longer and thus justifies the employee leaving”

I find that taking the facts as presented and applying the above Legislation and case law that this claim fails.

The claim fails.