Complainant

Respondent

Anonymised Parties

A Chef

A Care Facility

Representatives

Carley and Connellan Solicitors

Peninsula Group Limited

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-00015053-001

16/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015053-002

16/10/2017

The complainant was employed in food preparation for the respondent. The respondent operates a care facility for the elderly.

Following an incident when sandwiches were served allegedly in an unsafe state he was the subject of disciplinary proceedings.

Following a proposed demotion, he resigned and his complaint is of constrictive unfair dismissal.

In November 2016 a dish was prepared and served which was below the standard expected by the respondent.

Although he was not issued with a formal warning he was put on notice that there would be a review of his performance in four weeks. There was a further problem relating to his attendance but at the time of the incident at the heart of this case he was not the subject of any outstanding warnings.

In July 2017 sandwiches were prepared and served which had mould on them.

The complainant says the disciplinary process which followed was flawed, both in respect of the investigation and the process itself.

He did not dispute that he made the sandwiches (although his representative’s submission did) but would not have served them had there been mould on them at that stage.

A finding of gross misconduct was made against him and a sanction of demotion was imposed. This finding was totally disproportionate and excessive.

He says there were flaws in the conduct of the investigation and that responsibility for the defects in the sandwiches could not be attributed to him.

He was left with no alternative but to resign.

The respondent notes the complainant was initially employed as a Kitchen Porter in 2012 and in due course was promoted to the grade of Cook in 2014.

There was an issue about a grievance the complainant indicated he might raise in June 2017 about his supervisor, at which point he was also talking about leaving the company. This was processed through the company’s procedures but had an inconclusive ending.

However, on July 17th, 2017 several days before the sandwich incident there was a meeting with the complainant about standards in relation to food preparation.

Then on July 21st, a waitress noticed that sandwiches she had been given to deliver had mould on them and she reported this to her supervisor. The supervisor raised this with the complainant and he confirmed that he had made them, but that he had not noticed any mould on them.

Between July 21st and August 3rd the respondent conducted an investigation and interviewed six staff members. He was suspended on July 30th. The complainant was interviewed on August 8th and was accompanied at the meeting.

This resulted in the matter being escalated to a disciplinary hearing on the grounds of alleged of food safety breaches and potential damage to the respondent’s reputation.

He was told that the charges were regarded ‘as potentially gross misconduct which may result in the summary termination of your employment….’

The disciplinary hearing took place on August 21st and it resulted in the complainant being summarily dismissed on August 24th. He was accord a right of appeal which he exercised.

That hearing took place on September 8th, and a second the following week on September 13th.

The decision issued on September 19th and resulted in the sanction of dismissal being substituted with demotion to Kitchen Porter.

The complainant responded to this indicating that he did not accept the demotion and he requested the issuing of his P45 and payment of outstanding holiday payments.

The respondent replied saying that the complainant had not been dismissed and inviting to raise any issues he had in writing. He replied but also again requested his P45 ‘and all monies due’.

There was further correspondence about the precise status of the decision and eventually the complainant wrote on October 4th saying that he would not be returning to work as a kitchen porter.

Eventually, the respondent accepted this as his resignation on October 6th and submitted his complaint of constructive dismissal to the WRC on October 16th.

I deal first with the complaint that the respondent was the victim of a constructive dismissal.

A constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract.

The burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases of the normal type. A breach of the employment contract sufficient to fall under the Unfair Dismissals Act must be very serious and well justified.

In this case the complainant appears to base his grounds for resigning on the related facts of the conduct of the disciplinary process and the demotion, which in reality is the nub of the matter

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered.

Generally, in respect of the employer this 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.

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.’

Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

On the basis of the evidence at the hearing the investigation and disciplinary process were conducted to a reasonable standard.

There were six witnesses interviewed and not much fault was found with the process. There was some concern expressed by counsel for the complainant about a duplicate witness statement which was easily enough explained and nothing turns on it.

The complainant was put on notice of the disciplinary hearing, given the charges in advance and advised of the consequences and accompanied. As a matter of fact, it found that he alone had made the sandwiches and some other issues were also considered.

The conduct of the appeal was odd in some respects. The complainant based his appeal on the fact that the incident was totally unintentional and asked for his clean record to be taken into account.

To some extent this succeeded insofar as the proposed termination was set aside and substituted by the demotion.

Curiously, the finding of gross misconduct was not set aside.

The appropriateness of a charge of gross misconduct in the first place is very open to question. Even taking into account the possible outcome it seems excessive (although a charge of serious misconduct, which might also result in termination would not have been inappropriate, in my view).

The respondent however, felt that it was justified in the circumstances,

However curious this may be, it was the demotion that most upset the complainant, and it was his refusal to accept this that led to his resignation.

Therefore, the case turns on whether the actions of the respondent in imposing the sanction falls foul of the Berber test of being ‘unreasonable and without proper cause’.

It cannot be said remotely to do so. The clients in the respondent’s care are elderly and therefore particularly vulnerable to food borne infections.

In most complaints of constructive dismissal, a complainant will plead that they’ had no alternative but to resign’, and this plea was made in this case.

That of course is the standard by which a complaint will be judged. However, as noted earlier the bar for that is set high and a complainant’s own subjective view of what constitutes ‘no alternative’ may not be sufficient to succeed.

The limits placed on an Adjudicator in respect of the general assessment of unfair dismissal are well known. They cannot involve a substitution by the adjudicator of his view if the employer acted fairly and the sanction was within the ‘band of reasonable responses’ as it is described.

The Circuit Court’s decided in its decision in Allied Irish Banks plc v Purcell [2012] 23 ELR 189 in which Linnane J. stated as follows:

The correct test is: was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably another view’.

By extension, it is easy to see how that principle applies in the current case. Unless the decision to demote could be said to fall outside the range of reasonable responses it cannot, when the position is reversed, ground that action as providing a basis for constructive dismissal.

In my opinion, on the facts in this case it falls within the range of responses.

The reservations expressed earlier about the charge of gross misconduct fall away given that the respondent did not act on the normally, almost mandatory dismissal which follows such a charge.   Therefore, despite the somewhat unusual decision to retain the finding of gross misconduct (especially as the respondent accepted that the act had not been intentional) and apply a lesser sanction, the sanction itself was within the range of reasonable responses.

Judged by the Berber test, and the general principles applicable to a constructive dismissal the complainant’s case falls short and the complaint of constructive dismissal is not upheld. He has not established that the conduct of the respondent was ‘unreasonable and without proper cause’.

I also note the complainant’s refusal to engage with the respondent after the decision which is outlined above, which could have addressed details of salary to be paid and other issues.

No case was presented under the Industrial Relations Act.

For the reasons fully set out above I do not uphold complaint CA-00015053-001 under the Unfair Dismissals Act, 1977.

Also for the reason set out above I do not uphold dispute CA-00015053-002 under the Industrial Relations Acts, 1969.

Both are dismissed.

Constructive dismissal.