ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00012668

Parties:

	Complainant	Respondent
Anonymised Parties	Chef de Partie	Restaurant Chain

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-00016606-001	03/01/2018

Date of Adjudication Hearing: 04/07/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.

In these particular circumstances, the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment by way of Workplace Relations Complaint Form (dated the 3rd of January 2018) and I am satisfied that the complainant has the requisite 52 weeks of Service specified in the Act. There remains an issue with respect to the timing of issuing the Complaint.

The Complainant is claiming this was a Constructive Dismissal where he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997).

The burden of proof shifts to the Complainant in the Constructive Dismissal case.

Summary of Complainant’s Case:

The Complainant was unhappy that his Employer was so apparently careless with adding hours of a commute time onto his working day. He felt this was unreasonable on their part such that he could no longer be expected to continue to work for them.

Summary of Respondent’s Case:

The Respondent provided me with a written submission and urged me to find against the Complainant at the outset and in circumstances where his allegation of Unfair Dismissal was premature as the employment relationship had not been severed when the WRCF issued.

Findings and Conclusions:

I have carefully listened to both parties herein. The complainant is a skilled chef highly valued by the Respondent company which operates up to 5 or 6 premises around the City. The Complainant was initially engaged in a Temple Bar premises and found that placement to be very convenient to his commute to and from Lucan every day. After 15 months the Complainant was asked to move to a sister premises in Blackrock which was much less convenient to the Complainant. The Complainant worked there for 8 months. Whilst there, he might have raised his dissatisfaction with the commute but a formal issue was never raised. A Grievance Procedure operates across the workplace.

By the end of 2017, all the staff in the Blackrock premises knew that the Restaurant was having an entirely new fit-out due to commence on the 1st of January 2018 and to last two weeks. Where possible, the Employer distributed staff and shifts around it’s other locations so no one would be out of pocket. The Complainant was placed in Dalkey. Although the Complainant knew the placement was only for two weeks he refused to go and although he was rostered to work on the 3rd of January 2018 he opted not to turn up. The Complainant had advised the commute was too long and it was not worth his while. His Employer had stated he would give an extra hours pay and would be willing to adjust the roster to allow the Complainant leave earlier.

When the Complainant did not turn up on the 3rd there was no cover as everyone else was assigned elsewhere or had taken annual leave which is notified up to 4 weeks in advance.

On the very same day, the 3rd of January 2018, the Complainant submitted a Workplace Relations Complaint Form seeking compensation for having been Unfairly Dismissed. The dismissal amounted (per the Complaint Form) to a constructive Dismissal.

While the Complaint Form was working it’s way through the WRC system it is noted that the Complainant attended a meeting with his Employer wherein the issue of his failure to turn up for allocated shifts was on the agenda. At this meeting the Complainant was given a written warning. The Complainant did not ever go out to Dalkey and in fact he handed in his letter of resignation on the 11th of January with Notice up to the 15th of January which was the day on which (it turns out) he was starting a new job.

I am not satisfied that the Complainant was dismissed or was forced into a resignation (Constructive dismissal) before the date that the Workplace Relations Complaint Form herein issued. In fact, the Complainant only tendered his resignation on the 11th of January some eight days after he had put in a claim for Unfair Dismissal.

I am not satisfied that the Respondent’s conduct was unreasonable.

I am on balance satisfied that the complainant lodged his claim without fully exhausting and/or even utilising internal processes.

I am further satisfied that in these circumstances there is no valid argument which would persuade me to overlook the lodgement of the claim before the breach or contravention has occurred. I am therefore holding with the tribunal case of Caragh Neeson -v- John O’Rourke and Sean O’Rourke Chartered Accountant (UD2049/2011) wherein the tribunal found Section 8(2):

“demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date….if the Tribunal were to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which should later be withdrawn”

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.

The Complainant’s claim under the Unfair Dismissals Acts 1977 – 2015 fails and accordingly there is no redress.

Dated: 31st July 2018.

Workplace Relations Commission Adjudication Officer: Penelope McGrath