ADJ-00015238

Complainant

Respondent

Anonymised Parties

A Brewer

A Brewing Company

Representatives

 M.M. Halley & Son, Solicitors

Act

Complaint Reference Nos.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00019832-001

18/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under  Schedule 6 of the Consumer Protection Act, 2007

CA-00019832-002

18/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019832-003

18/06/2018

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

CA-00022268-001

01/10/2018

The Complainant claims that he was effectively removed from his role within the Respondent, leaving him with no option but to resign. He claims that while he was there the Respondent failed to provide him with the help and assistance that he needed as he went through difficult times with his mental health. He also claims that he was not given breaks.

The Respondent disputes this claim in full. It said that the Complainant chose to resign. He had helped out working in the Bar and when he outlined the problems he was having, it sought to return him to work in the brewery. There was no discrimination and he left his employment by his own choice.

The following is a short summary of the Complainant’s case.

The Complainant said that he commenced employment as a brewery assistant in August 2013. He said that his employer asked him, at the end of 2017, if he would work as a barman in a different location for 6 months at a new Bar it was setting up. He said that this was because he had in the past worked as a Barman. He said he did not particularly want to go back into that work environment, but he reluctantly agreed to split his working hours between the brewery and the Bar for a period of 3 months only to help his employer out.

The Complainant said that he quickly realised that he was just been allocated hours in the Bar and he was not given any hours to work in the brewery. He said that he raised this issue with the owners, and he was told that all employees would have to help out working in the Bar. However, he said that he was the only employee that was moved to work at this location.

The Complainant said that he had to work long hours in the Bar, and sometimes for up to 11 hours, with no breaks. He said that he repeatedly asked to return to his normal job in the brewery, but he was told that there were no hours available in the brewery but that it was not a redundancy situation either. He said that he became ill from the stress of the long hours working in the Bar and not afforded the opportunity to work as a brewer. The Complainant said that he began suffering from debilitating anxiety attacks.

The Complainant said that he spoke to Ms. A, his employer, about being unwell and feeling pushed out of his job. However, he said that she told him that he had become withdrawn and she did not feel that he was a team player. He said that when he informed her that he was suffering from anxiety, he said that her only response was to tell him to go on unpaid leave. He said that Ms. A made no effort to learn more about his medical situation, to accommodate him or to address the causes of his anxiety. He said that he was placed on certified sick leave from 9 March 2018 for 5 weeks.

The Complainant said that towards the end of March, he met with his employer and asked to be returned to his brewing role on full working hours. He said that was refused to him, saying that there were not enough hours. He said that no other employee was put on short-time while he was there. He said that his employer offered him a part-time role in a different position, with another entity, which would have involved a lot of travelling that he was not happy about and he again asked to be placed back in his original brewer’s position.

The Complainant said that he met with Ms. A again at the beginning of May and told her how badly he felt that he was being treated in relation to his working hours and duties. He said that his employer responded by raising, for the first time, issues from the past about his behaviour at work that it claims that could have resulted in disciplinary action. He said that he felt that he was being threatened with disciplinary action for raising his grievances.

He said that he was informed that he could return to work in his original position on a 2 day per week basis and hopefully build his hours back up to full-time. No other employee had their hours reduced. He said that he returned to work on 12 June 2018. The Complainant said that he instituted two complaints with the WRC also in June in relation to discrimination and his hours of work. He said that he understood that he would be permitted to discharge his normal duties in a full-time capacity. He said that while he returned to his full-time hours, he was not returned to his usual brewer role. He was rotated between technical call outs, packaging and transfers. The majority of his time was spent doing line cleans on technical call-outs.

He said that there was also an awkward atmosphere on his return to work. Ms. A hardly spoke to him. He said that he continued to do the work that was allocated, and he dare not raise further grievances as he felt that his previous grievances had effectively been ignored.

He said that there was a further incident on 6 July 2018 where deliveries needed to be made. He said that as he had been placed on "general housekeeping" duties instead of brewer duties so he offered to do it. He said there was a hesitation to let him do it and he learned that Ms. A did not want him out and about driving in the van. He said that he continually felt like he was being penalised and victimised for suffering from anxiety earlier in the year and for raising a grievance. The Complainant said that he spoke with a colleague who advised him that Ms. A had to approve all his work prior to assigning it to him. He said that from that point onward, he was put out in the van on deliveries all the time and he never returned to the brewer role following his returned to work from sick leave on 12 June 2018.

The Complainant said that his role before going on sick leave was that of co-head brewer along with another colleague, prior to the role of barman. He said that since his return, he had to report to the other co-head brewer, which he felt was very demeaning.

He said that he had a conversation with Ms. A and Mr. B, the other director, on 8 August where he told them that he was feeling very stressed, that he had been pigeon-holed into doing menial tasks and deliveries. He said that he verbally indicated that he could see no option other than to resign as he could not see any prospect of his situation improving and returning to the way it used to be.

He said that Ms. A replied by saying she was sorry to see it end like this and asked for a letter of resignation. He said that Ms. A told him that she would waive his requirement to work his notice period and he could finish on 17 August instead. He said that is when his employment ended.

The following is a short summary of the Respondent’s case.

The Respondent said that the Complainant was employed by it from 6 August 2013. Prior to that, he had been working at the brewery since November 2012, through the JobBridge scheme. There was no prior knowledge by the Respondent of the anxiety issues prior to the Complainant’s commencing work at the brewery. He had never been laid off or put on short time before.

The Respondent said that when the Complainant’s contract commenced in 2013 the business had been in operation for just over 2 years and was still in ‘bootstrap’ mode. There was one other employee on the payroll in addition to one of the company directors. The business saw good growth to 2015, but the market space in which it was operating became very congested following a spike in entrants to the same market from 2015 onwards. The business saw peak revenues in 2015, but sales have not reached that level since. There were five production staff in the business during 2015. This reduced to four in 2016, and 3.5 in 2017. At the beginning of 2018, a part-time employee left, and was not replaced, as there was insufficient production work in the business to justify it.

The Respondent said that he Complainant’s contract of employment provided that certain flexibilities would be required in that he must be prepared to undertake other duties as necessary. This included duties outside of normal work and for subsidiary companies. At the end of 2017, the Respondent decided to open a Bar. Having significantly more previous bartending experience than any other brewery employee, including both directors, Ms. A, Director, asked the Complainant if he would be prepared to help in the Bar for the first 6 months to get things up and running. It said that the Complainant had stated in the past that he would like to get involved in a Bar should the brewery ever decide to open one. At no time was the Complainant informed that he must take up this post. He said he would think about it. When he responded he said that he would only like to do it for 3-4 months as he did not want to get back into the service industry hours in the long term. The Respondent said that Ms. A agreed with this approach and they thanked him for agreeing to help with the project.

The Respondent said that another employee, Ms. C in Marketing, assisted in getting the Bar opened, and continues to work on the marketing aspects of the Bar as part of her role, in addition to planning events. She has also covered shifts in the Bar when required, including for the Complainant when he needed unplanned time off. Two other members of staff in production both assist in general maintenance work, beer technical services and stock management at the Bar.

Ms. A said that when the roster was created for the Bar, she always asked the Complainant to approve it, which he always did. Three of his shifts were during the daytime on foot of his request regarding hours. At the time, it was envisaged that there would be one day of work a week in the Brewery for the Complainant.

Therefore, prior to the Bar opening, the Respondent met with the Complainant on 29 November 2017 for the purposes of ensuring that he was happy with the arrangements being made, and he confirmed he was. The Bar opened its doors for the first time on 1 December 2017. After Christmas, as things quietened down in both the Bar and the brewery, it was essential to make some changes to the Bar roster. The roster was typically issued for 4 weeks at a time, to allow people to plan ahead and request any changes they might need.

The roster was put together with reference to a start time and closing time, but the hour of closing time was not specifically stated – the rota just said for example “4pm to closing time”. At closing time, the Bar stops serving and the staff members in question take a break. Then there is an element of clean-up, so the actual finishing time will depend on what time the staff member takes that break at, and how long they take it for. Closing time on Monday to Thursday was at 11.30pm, but on Friday and Saturday it was 12.30am. The Saturday hours are divided into a day shift and evening shift because the Bar opens at 2pm so the evening shift does not start till 7.30pm. It said that on Friday’s it had a second staff member on during December, but when things quietened down in January, this could not be justified, and the roster was slimmed down to one person on Friday nights.

The Respondent said that the Complainant was rostered from 11am to 7pm on Monday, 4pm to closing time (23:30) on Thursday, 4pm to 12.30 a.m. on Fridays, 2pm to 8pm on Saturday and 2pm 7pm on Sunday. During the month of February, the Complainant had an additional weekly cash handling task which could have been done at any time during the day on the Thursday, Friday or Saturday. He elected to do it before his Friday shift, thereby changing the start-time of his shift and extending his working day. When the latter shift was brought to the Respondent’s attention at the end of February, Ms. A resolved it straight away by removing the cash handling task from the Complainant’s weekly duties and changing the start time of his shift to 6pm. It was also agreed, on the Complainant’s recommendation, that the opening time of the Bar be changed from 4pm to 5pm. This was implemented during the next refresh of the roster.

During the post-Christmas period there was very little demand for production in the Brewery.  Production requirements were approximately half of what they had been during this period in the previous year. This quiet period meant that there were significantly fewer hours of work available. The Respondent said while it would expect a tail off of production in January in general, they had not seen such a drop before. One production staff member finished up at the end of January and was not replaced due to lack of business justification.

At the end of February, by which time the Complainant had worked 34 daytime shifts and 20 afternoon / evening shifts the Complainant informed Ms. A that he had suffered from a panic attack the previous week. This was on 26 February, the first day that she was back at work having been away since 6 February 2018. The Respondent said it was not aware that the Complainant had been experiencing such issues heretofore.

Ms. A said that she expressed concern and asked the Complainant to tell her more about it. He said that he thought it might be related to being behind the Bar. Ms. A asked him if this had happened to him previously when he had worked behind Bars, and he said no. Ms. A said she asked him if there was anything else that she should know. The Complainant said no but noted that he wanted to go back to the brewery. Ms. A expressed sympathy with the Complainant’s difficulties. She noted that there were two issues to be addressed before it would be possible to move the Complainant back to the brewery. A replacement would have to be found to work in the Bar and production would have to pick up in the brewery which was much quieter than expected.

The Respondent said that notwithstanding the above difficulties Ms. A said she would find a solution to both issues. In the interim she asked the Complainant if he would be willing to continue to do some of the non-bartending work in the Bar such as stocktaking and cash-handling; to which he agreed but said he would prefer to return to the brewery completely. However, he asked if he could go part-time in the brewery for a while if that would mean he could leave the Bar and Ms. A said she would look at that as an interim solution. The Respondent said that the Complainant was not rostered to work for the following couple of days, and Ms. A said that she would get back to him 

later that week when he was back at work.

Due to heavy snow at the end of that week the Bar was not open for its normal hours and Ms. A was unable to meet the Complainant. On Monday the 5 March 2018, Ms. A again met with the Complainant to discuss his concerns and talk through some options. One of these options was a part-time role with a subsidiary company. The Respondent was willing to facilitate this with part time hours in the brewery and this would also give him the use of a company van to carry out the role. The new role involved the same type of work that the Complainant had been doing since starting at the brewery. The Complainant said he would be interested in this, and Ms. A agreed to find out more on his behalf. The Complainant was not working the following day or on the Wednesday and it was agreed that a further meeting would take place the next Friday to progress matters.

The Respondent said that another co-worker from the brewery covered the Complainant’s hours in the Bar while he attended his reiki healer on Thursday 8 March and when he returned to work the next day, Ms. A said he appeared very debilitated from anxiety. Ms. A said she took him aside and he said that “I can’t do this” so Ms. A sent him home to recover and look after himself, and she that she would cover his shift. The following day the Complainant sent a message to Ms. A to ask if he could speak to her by phone, he told her that he was going to seek medical help for his anxiety as the alternative therapies that he normally used to deal with it were not working for him. He said there was bad energy in the building. Ms. A said she expressed concern for his health and asked him to let her know if there was anything she could do. He was asked to bring in his medical certificate and social welfare documentation for sick leave when he had the chance. On this occasion Ms. A said that she informed him that, in addition to sick leave, if he needed further time to recuperate, he could take additional unpaid leave.

On 16 March the Complainant brought in his social welfare documentation for an employer’s signature. On this occasion he spoke with Mr. B the other director and they discussed anxiety and mental health issues, and the Complainant said he was signed off on sick leave until the end of March, and at that point he would be going back to the doctor again. The Respondent said that the Complainant informed Mr. B that the doctor wanted to prescribe medication for him, but he did not want to take it.

On 3 April Ms. A met with the Complainant and discussed his situation at length and she informed him that business was still down meaning that required production was slow. They had a discussion about an external part time role previously discussed to which he expressed a concern regarding training for the role. Ms. A told him that she would ask if training would be provided and would let him know. He agreed. The Respondent said that it asked the Complainant to let her know how that went later in the week and reassured him that he was a valued member of the team and that the Respondent wanted to get him back to work as soon as he was well. She said they would figure the work hours out. He was also asked to drop in his doctor’s certificates.

The Respondent said it did not hear from the Complainant again until 24 April when he requested to meet. This meeting took place at the Brewery on 26 April and he said that he had been waiting for an update from the Respondent. Whereas Ms. A said she was waiting on him to come back to her with medical certificates and he did not come back.

Ms. A asked the Complainant how he was getting on with the doctor to which he replied that he was no longer medically signed off. He asked when he was going to be allowed to return to work. Ms. A said up to that point she had not known he was no longer on medical leave. This was because she had not received any medical certificates or updates from him as requested. In light of this Ms. A said that she would progress a plan to get the Complainant back to work and gave him an update on the production situation in the brewery.

The Complainant was informed that the decline from the previous year was at that point continuing, but Ms. A took him through some projects that were coming up which would build up the work available. However, the Complainant was informed that it might take a little time and that initially it was likely that only part-time hours would be available, but these would expand. Ms. A then asked if he had been speaking with the subsidiary about the other role that they had been discussing. Contrary to the previous meeting, the Complainant now said that he was not interested in the opportunity.

Ms. A said that there was work related to the Bar but noted the Complainant did not want to do that kind of work. The Complainant confirmed the Bar caused him anxiety still, and that he had not been in there since he had gone on sick leave. Ms. A said that this created some challenges as general work in the brewery often involves the Bar, such as line cleaning, deliveries, and the like.

The Complainant expressed his dissatisfaction with how he felt he was being treated. He said that he felt he was being treated badly as a long serving member of staff. Ms. A said that she was sorry he felt that way, but the Respondent was doing its best to resolve the situation in difficult circumstances. Ms. A said that the Respondent was making every effort to get the Complainant back to work. She said that as people carried out different roles in the brewery, it was not possible to operate on a last - in-first-out basis, and that the reduction in hours should just be temporary. The Complainant asked if redundancy was an option and Ms. A replied that his role was not redundant,

that it still existed, and that she was working on trying to get things back to normal.

The Complainant said that if full-time hours were not available to him, he might not return to the brewery at all and remarked that he had been thinking about doing something completely different, possibly going back to education in September. Ms. A said that she was sorry to hear this and said that she did not want him to leave the brewery. She asked if there was any educational help that the Respondent could assist with in tandem with his work at the brewery, or if there was any qualification that the Complainant was interested in pursuing in the brewing area. He said he would think about it and Ms. A asked the Complainant to look at the educational options available to see if there was something of interest to him that could be considered. Ms. A said that she would look

at the production and project schedule in the meantime and come back with an update in a few days.

Ms. A and the Complainant met again on 2 May. The Complainant told her that he did not trust her. Ms. A said she was very sad to hear that and said she would like to understand how that happened. She asked him if he would tell her what she had done to lose his trust, but he refused to tell her. Ms. A said that she still had concerns that the Complainant believed there was a conspiracy to remove him from his job and that she was behind it. The Complainant confirmed that he believed this to be the case. Ms. A stated that she wanted to clear this up because it was most certainly not the case that she wished him to leave and expressed concerns that her repeated reassurances in this regard were going unheard.

Ms. A then sought again to address a plan to accommodate the Complainant. She said that there were at least two days’ work available immediately. In addition, based on various other projects in the pipeline, this was expected to be increased in the weeks ahead. Ms. A noted that some of these projects, while not actually being Bar work, would be related to the Bar. This would include renovating the upstairs room for functions, so it would be up to the Complainant if he wanted to participate in working on these projects. However, it was also said to the Complainant that if he felt he could not work on the Bar related projects that the Respondent might be able to work around that.

The Complainant stated that this was not good enough and Ms. A asked him what he wanted to which he replied that he did not know. Ms. A asked if there were 5 days’ work on the brewery floor available for him immediately, would that be what he wanted. Again, the Complainant replied that he did not know and asked if this was redundancy. Ms. A said she was exploring numerous options to try and do so in a way that she felt was manageable, but it would just take a bit of time to get back to full time hours because of trading conditions. On 4 May Ms. A again met with the Complainant and outlined a further proposal to restructure some work currently outsourced to a 3rd party contractor by bringing it back in-house. The intention was that this would increase the hours of work for the production staff in the brewery. In addition, the brewery was coming into the busy summer season, and there would be more work in general. This, along with a couple of projects in the pipeline, would get the Complainant back to full time hours more or less immediately.

On this basis Ms. A asked the Complainant how he felt about this and if he thought it would be a good route forward to which he replied that it might be. He said that he had access to casual work with another company so full-time hours were not an issue. In fact, he confirmed that he was already working with another company, and he came from that job to the meeting with her. He also said that he was not sure at this point if he wanted to return to work in the brewery but noted that if he did decide to leave the Respondent, he would rather do so with no ill- feeling. For the Respondent’s part, Ms. A agreed that she did not want any ill-feeling, regardless of the outcome. She said that she would prefer that the Complainant return to work in the brewery, but if he decided that leaving was the best thing for him, she would understand. In this regard Ms. A suggested the option of the Complainant returning to the brewery for a few weeks to see how he felt about it, and then if he still decided he wanted to leave, a joint approach could be taken on how to approach that.

The Complainant said that he had a lot of things to think about and said that he would get back to Ms. A once he had had time to think about what he wanted to do. Noting that he would be on vacation for a few days the following week, Ms. A suggested that he takes the time to enjoy this and to get in touch when he was back and had made a decision. Ms. A thanked the Complainant for coming in to talk, and said she was glad to have had such a positive conversation. Ms. A again stated that she really hoped he would return to his job in the brewery. Having heard nothing further from the Complainant for 3 weeks, the Respondent sent him an email on 26 May to ask if he could let Ms. A know whether he had decided to come back to work. No reply was received and so follow up mails were sent on 29 and 30 May, along with a text message on 29 May and a phone call on 30 May. A reply was received by email on 30 May stating that the Complainant would be seeking legal advice.

The Respondent said that the Complainant was not dealt with less favourably by reason of a disability in terms of his employment, nor was he victimised and that all reasonable efforts were made to accommodate him.

In relation to the Complainant under the section 27 of the Organisation of Working time Act, 1997 the Respondent disputes this claim. It said that the Complainant was the only employee scheduled to work from 16:00 until 00:30 on Friday evenings in February. The reason that only one employee was rostered on was due to the Bar being very quiet in this period. During this time there were always periods where the Bar had literally no customers for long periods.

The Respondent said that the Complainant is not correct that he was made to work 11-hour days. During Ms. A’s absence in February 2018 it had been agreed with the Complainant that he would complete a weekly cash handling task. No set day was designated. It could have been done in the morning time, allowing the Complainant to then have a break before his rostered hours for that evening. Equally it could have been done on Saturday, in advance of the Complainant’s 6-hour rostered shift. The task itself should have taken approximately 1 hour. However, the Complainant chose to come into work two hours early to carry out this task during the month of February. When these issues above were brought to the attention of Ms. A at the end of February they were, as necessary, immediately rectified.

CA-00019832-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Relevant Law

Section 6 of the Employment Equality Acts 1998 -2015, states as follows:

“6.-(1) For the purposes of this Act and without prejudice to its provision relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as ‘the discriminatory grounds’), which -  

exists,

existed but no longer exists,

may exist in the future, or

is imputed to the person concerned, 

a person who is associated with another person –

is treated, by virtue of that association, less favourable than a person who is not so associated is, has been or would be treated in a comparable situation, and

similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are-

that one is a woman and the other is a man (in this Act referred as “the gender ground”) …

(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If s/he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.  

In the case of Melbury Developments v Arturs Valpetters [EDA0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Complainant states that he suffered from panic attacks which were brought on by his ongoing stress of having to work in the Bar and not being allowed to return to his original role as a brewer.

I note the evidence presented by both parties and it is very clear that the Respondent was not aware of the Complainant’s panic attacks at all prior to him admitting them to one of the Directors, Ms. A just prior to him going out on sick leave in and around 26 February 2018. The facts have not been disclosed until that date and I am satisfied that the Respondent could not or would not be aware of the disability prior to that date. I note that once the Respondent was aware that the Complainant was suffering anxiety working in the Bar immediate compromises were looked into to ensure that the Complainant would not have to return to work where he claims that trigger his difficulties.

The Complainant went out on sick leave and raised criticism at the Respondent for not returning him back to work speedily. I note that the Complainant had not kept the Respondent abreast of his health situation and I am satisfied that this criticism cannot be levied on the Respondent. It is up to the Complainant to send in medical records, which he did not, and therefore he failed to keep his employers up to date on his availability to return to work. The Respondent was not aware that the Complainant was available to return to work.

The Complainant claims that on his return to work he was not returned to full brewing duties but tended to tasks auxiliary to that role. The Respondent said that the business was struggling and there was not as much work for any of the staff employed there, and that the duties that the Complainant was asked to do were common duties that everyone had to share. I note there was a substantial reduction in the number of people working there from 2015 through to 2018. I am satisfied from the evidence from Ms. A, that the business was ‘just surviving’, and everyone was filling the roles between them to keep the business alive. I note from the Complainant’s contract of employment that his role was primarily ‘a Brewery Assistant’ and that flexibility in that role required the employee ‘must be prepared to undertake such other duties as may be assigned to you … [even] duties can be outside the area of your normal work’.

For the Complainant to establish direct discrimination on the grounds of disability, he is required to establish facts that demonstrate less favourable treatment of another without his disability, his comparator. I have taken his evidence and I cannot identify the comparator that was treated more favourably at this time. I am satisfied that the Complainant has failed to establish facts that could be deemed to be of sufficient significance to raise a presumption of discrimination.

I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability.

CA-00019832-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant claims that he had at times to work without a break and this is a breach of the Organisation of Working Time Act. The Respondent has admitted that the Complainant was the only employee scheduled to work from 16:00 until 00:30 on Friday evenings in the month of February. The Respondent said that the Bar was extremely quiet, and the Complainant could have taken his breaks accordingly.

I note that the Complainant has a contract of employment. I note it sets out in detail the breaks and rest times that the Respondent operates and significantly it states that “where you do not get an opportunity to take breaks please inform your manager in writing within seven days and an alternative break period will be assigned”. I note that period the Complainant said he did not get breaks was in February 2018, although it was his evidence that the Bar was so quiet, he recommended for the Bar’s opening hours be reduced, due to lack of customers. I have heard evidence that the rosters were drawn up with the Complainant’s approved and breaks were not raised as an issue. I note when he had a problem in not getting breaks, he contacted Ms. A. his manager, and this was addressed immediately.

Having considered the above mentioned I find that there was no breach of the Organisation of Working Time Act, 1997.

CA-00022268-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1 of the Unfair dismissal act defines “dismissal”, in relation to an employee, means—

“(b) the termination by the employee of his contract of employment with his employer, whether 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 term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition, Section 1(b) of the Act which provides that:

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of his contract of employment. It was not in dispute that the Complainant resigned from his position from 26 June 2018.

The Complainant is claiming that he was constructively dismissed from his position with the Respondent.

As the Complainant is claiming constructive dismissal, the onus of proof rests with him to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The appropriate legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows 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 other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, it 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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

The Complainant claims that he was totally undermined, he was not returning to the position that he felt he should be doing. He had no relationship with Ms. A and just could not go on in that arrangement.

The Respondent disputes the claim of constructive dismissal. It said that it was unaware of the Complainant’s grievances, they were in constant communication about his role and work arrangement and that it was doing its best with the difficult position that it was in and it attempted to look at various options that were available to assist the Complainant. The simple fact was that the business was not striving like they had hoped, and times were hard. I understand that everyone had to pull their weigh and many projects and roles were discussed with the Complainant which he seems to explore and then reject as completely out of order. I have already referred to the contract of employment above and its is evidently clear that flexibility and sharing the workload was essential for this role. I prefer the Respondent’s evidence that it did all that it could do to keep the Complainant in employment.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a very high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve the grievance with the employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, I am satisfied that the Complainant said that he did not raise a formal grievance on how he was been treated by the Respondent, in particular Ms. A. I note the evidence from the parties and accept the Complainant’s evidence that he was unhappy there and much of that was levelled at Ms. A. However, difficult it might seem on a practical level, there is an obligation on the Complainant in such circumstances to activate an internal grievance with the Respondent to see if the matter can be addressed before taking the step to resign from his employment. The evidence from both parties is that this never happened. The Complainant just left his employment and he never returned.

In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was such that he had no option but to resign his position. I find that the Complainant did not give the Respondent an opportunity to address his concerns before taking the decision to resign. Accordingly, I find that the Complainant was not constructively dismissed from his employment.

CA-00022268-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

I find that the Complainant resigned from his position of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint cannot succeed.

CA-00019832-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complaint in relation to a breach of section 27 of the Organisation of Working Time Act 1997 is not well founded.

CA-00019832-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

I find that the Complainant has not established a prima facie case of discrimination on grounds of his disability.

Employment Equality Act - Organisation of Working Time Act - Unfair Dismissals Act – not well founded