Complainant

Respondent

Anonymised Parties

A Bar Manager

A Bar

Representatives

 Consulting

Act

Complaint Reference No.

Date of Receipt

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

CA-00017301-001

06/02/2018

The complainant was asked to accept a transfer to another bar in the respondent’s group. He says that this would have been an effective demotion and also involved a reduction in his wages with uncertainty over his hours.

On December 30th 2017 he was called to a meeting with management and asked to leave the company.

There was a further meeting on January 25th at which he was offered the alternative location on the basis of reduced wages.

He went on certified sick leave for the following weekend. Following this his name was removed from the roster.

He says his employment terminated on January 28th.

He wrote the following day stating that he was declining ‘to enter the new contract’.

The respondent confirmed that the complainant had not been dismissed and that he left the employment of his own volition.

Therefore, the complaint is one of constructive unfair dismissal.

At no stage did the complainant avail of the company’s internal grievance procedure. He was aware of its existence and evidence was given of his signature on the policy document.

The complainant had told the respondent that he wished to take time off for family reasons

There was a record of poor conduct and also performance which was discussed with the complainant on three separate occasions. In fact, in the face of one very serious episode the respondent declined to take disciplinary action and the complainant was given every opportunity to improve.

At the point where he was taken off the roster the respondent believed that it was facing a significant absence on the part of the complainant.

The respondent disputes the detail claimed by the complainant in respect his new terms of employment. His hours would not have been insecure in the new position and the wages had not been determined.

The burden in a complaint of constructive unfair dismissal falls on the complainant.

There are two questions in this case.

The first is whether the respondent had good grounds to initiate the transfer of the complainant to a different venue.

I accept that it had.

There was a history of performance issues which was not disputed by the complainant.

Admittedly, what the respondent’s representative described at the hearing as ‘forbearance’ in respect of at least one very serious complaint is hard to understand.

Where an employer declines to take action, which might make sense in particular circumstances, the value of ‘forbearance’ as currency in any future proceedings will be very limited.

In this matter that is less so, as the respondent did not use the previous incidents to effect disciplinary sanctions of themselves, and it seems reasonable that it should initiate the actions it took for the reasons outlined; a combination of conduct and performance issues.

The contribution made by the confusion surrounding the complainant’s absence on sick leave did not help matters but again, I am satisfied that this was the reason he was removed from the roster. It was not an act terminating his employment.

His failure to pursue the matter through the grievance procedure is fatal.

While the proposed transfer may have been insisted on by the respondent, important detail such as his hours, wages and status had clearly not been finalised. A meeting with the complainant on January 23rd had concluded, according to a note submitted by the respondent, on the basis that the complainant was to reflect on some of the issues discussed and revert to the company.

This did not happen because of the complainant’s illness.

It was a perfectly valid position for the complainant to ‘decline to enter the new contract’. On the facts in this case what he could not do was construe the position then existing as grounds for the termination of the contract of employment.

He was obliged to avail of the grievance procedure to have those matters resolved. As late as February 23rd 2018 the company confirmed that his job was still available.

The complaint had been referred to the WRC on February 2nd, a matter of two days after he declined to accept the proposed terms, as they then were. The complainant clearly had no intention of availing of the internal machinery to resolve matters, and as noted above this failure is fatal to a complaint of constructive unfair dismissal.

Accordingly, his complaint fails.

For the reasons set out above I do not uphold CA-00017301-001 and it is dismissed

Constructive Unfair dismissal.