ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00018358

Parties:

	Complainant	Respondent
Anonymised Parties	A Chef	A Bakery / Restaurant

Representatives

Marius Marosan

Stephen Kane Solicitor of

Byrne Wallace

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023597-001
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023597-002
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00023597-003

Date of Adjudication Hearing: 04/04/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 ; Section 8 of the Unfair Dismissals Acts, 1977 – 2015 andSection 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The issues in contention between a Chef and a Bakery/Restaurant concern an alleged Constructive Unfair Dismissal and related complaints regarding Holiday Pay.

1: Summary of Complainant’s Case:

Act	Complaint/Dispute Reference No.	Summary Complaint
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023597-001	On Resignation the Complainant did not receive outstanding Annual Leave.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023597-002	On Resignation the Complainant did not receive outstanding Public Holiday Pay, i.e. the August and October Bank Holidays.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00023597-003	See Below for a detailed Statement

1:1 Unfair Dismissals Act,1977 complaint.

The Complainant commenced employment on the 21 April 2017 and matters had proceeded without incident until the 12th July 2018. On this day she was called to a meeting with her Managers and issued with a Verbal Warning -confirmed in writing for a number of alleged breaches of Company Policy.

She was not given any proper pre-notice of the meeting or any rights to Representation and could not adequately challenge any evidence presented. Her point of view on the issues in dispute was not considered at all. There was no proper Investigation of any of the allegations made against her.

Subsequent to the Meeting she requested the Minutes and notified her Employer of her intention to lodge a Formal Appeal. The response to this request was slow but she received an e mail in Mid-August indicting that she would soon be given a date and time for her Appeal. In late August (the 27th) she had still heard nothing, so she e-mailed again indicating that unless the issues were clarified “she cannot continue working for the Respondent”.

At this time, she was on Sick Leave for work related stress. By the 31st October 2018 no Appeal had been arranged and the Complainant gave one weeks’ notice of her intention to resign.

The employment ended on the same date without any Notice Pay being given.

In Legal Submissions her Representative pointed to SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures and the general rules of Natural Justice in Dismissal situations.

None of these basic requirements were complied with. In this light the Constructive Dismissal is fully justified.

2: Summary of Respondent’s Case:

Act	Complaint/Dispute Reference No.	Summary Respondent response
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023597-001 Annual Leave	On resignation the Complainant had over taken her Holidays and accordingly no Annual Leave was due to her.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023597-002 - Public Holidays	On resignation the Complainant had over taken her Ordinary Holidays and any obligations regarding Public Holidays must be offset against this.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00023597-003	See Below for a detailed Statement

2:1 Unfair Dismissals Act,1977 complaint

At a meeting on the 12th July 2018 the Respondents had raised four (4) issues with the Complainant.

These were, Use of Mobile phone while at Work, Taking Food without Permission, Work Attitude and Failure to provide adequate Notice of Annual Leave requirements.

The Respondent believed that the meeting had been productive and the issues of complaint with the Complainant were at an end. A Formal Verbal Warning, confirmed in Writing, was given to the Complainant.

On the 26th July the Complainant requested a Copy of Her T &Cs of employment and a copy of her employment contract. On the 31st July the Respondent phoned the Complainant and offered her a Copy of Her Old Contract which had expired on the 25th July 2018.

On the same day the Complainant commenced a period of Sick Absence which continued until her eventual resignation on the 31st October.

A disputed E mail was allegedly sent by the Complainant on the 2nd August formally requesting an Appeal but was never received, as stated in evidence, by the Respondent. None the less the Respondent became aware of the Appeal Request and phoned the claimant to advise her that the Appeal would take place when the Managing Director, Mr. XA, returned from his Annual leave.

At or about this time the Complainant initiated a claim to the WRC under the Terms and Conditions of Employment (Information) Act,1994. As the Respondent was very unfamiliar with WRC Procedures and Employment Law in general they presumed that the reference to the WRC under the 1994 Act was now legally superseding all local Appeals and felt that it would be inappropriate to take further local actions/ or make responses to Complainant’s mails.

There was no manifest or malign intention on the part of the Respondent to deny an Appeal but a simple feeling that the issue was now in the hands of the WRC and would be disposed of at that forum.

Medical Certificates continued to be received until the Resignation on the 31st October.

In Legal Submissions the Respondents Legal Advisors pointed to the standard tests required in a Constructive Dismissal case namely Breach of Contract and Reasonableness of Behaviour. An extensive body of relevant case law and precedent was quoted.

In summary the Respondent maintained that under both standard Legal Tests they had no case to answer. They had always acted Reasonably and no Breaches of Employment Contract, of such a serious nature, had taken palce to warrant a successful claim for Constructive Dismissal.

3: Findings and Conclusions:

3:1 As the principal claim in this case in under the Unfair Dismissals Act ,1977 CA-00023597-003 I will deal with this issue first. The Complainant resigned /left her employment, so the Dismissal is one of a Constructive nature.

3:1:1 Applicable Law

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

“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,…”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. 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 Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

“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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

“the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal

Regarding Natural Justice the case of Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.

Section 6 and 7 are pertinent and are quoted below.

Section 6

• That employee grievances are fairly examined and processed;
• That details of any allegations or complaints are put to the employee concerned;
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.
Section 7 These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

Notwithstanding the above legal points each case must stand on its own facts and evidence. Extensive Oral and Written evidence was presented, and full cross examination of witnesses was allowed.

I will now consider these matters.

3:2 Consideration of the Evidence. Unfair Dismissals Act -Constructive Dismissals complaint CA-00023597-003

As an aid in considering a Constructive Case I will use the two Legal Tests referred to above namely (1) Breach of Employment Contract and (2) Unreasonable Behaviour by the parties.

3:2:1 Breach of Contract

The Legal Principles here require that the breach of contract be of an “egregious and fundamental nature” i.e. of such a fundamentally bad nature as to make the position of the employee completely untenable and leaving Resignation as the only “reasonable step”

In this case the Complainant was the subject of what could only be called a Disciplinary Meeting on the 12th July 2018 after which a Verbal Warning was issued and confirmed in writing.

The employment relationship continued, and all wages and salary payments were made. There were no deductions or penalties imposed. The Complainant was offered a New Contract after the initial Contract had expired on the 25th July 2018.

Having reviewed all the evidence, both Oral and Written produced, I could not see any fundamental or egregious Breach of the Employment Contract such as to justify a Constructive Dismissal.

3:2:2 Unreasonable Behaviours

Taking SI 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures as a Guide Line the meeting of the 12th July might have been handled better from the point of view of evidence being presented to the Complainant and Representation offered. The Warning was admitted to having been written beforehand. It might have been better to have allowed day or two for the Complainant to have come back with her version of events before a decision being taken. The good guidelines in SI 146 of 2000 were not observed.

However, seeing that it was a first stage meeting, the parties appeared to have had a reasonable amicable discussion and the outcome being more of an advisory nature that imposing any penalty it would be hard for a “Reasonable” observer familiar with the Catering/Restaurant Industry to come to the view that it was so Unreasonable as to warrant a Constructive Dismissal.

There was no suggestion at all of an end to Employment and the Warning was , by normal standards, very low key.

The taking of Sick leave on the 26th July, a fortnight later, allegedly because of the Stress incurred by the Complainant following the Verbal warning seemed at best, from a reasonableness point of view, a rather delayed reaction.

The question them moves to the Appeal requests.

Allowing for some confusion over the receipt of E Mails and a letter from the Complainant’s GP it was clear that the Respondent was aware of a request for an Appeal by the start of August and the MD, Mr. XA, was being lined up to hear the case on his return from Annual Leave.

The Respondent than received the WRC notification for the Terms of Employment (Information Act) ,1994 claim on the 15th August and mistakenly presumed that the Appeal Process had “gone external” and would be considered at the WRC as opposed to Internally.

At this time the Respondent had no Legal Representation and was in effect operating with a very loose knowledge of Employment Law and Procedures.

Unfortunately for the Respondent case they appeared, in oral Evidence, to have had a somewhat naïve view that the Complainant would eventually come back to work possibly post the Terms of Employment hearing. Their mistaken view was that correspondence or contact pre-this Hearing would be legally inadvisable.

No professional Legal advice appears to have been taken at this stage.

Consequently, the failure to hold an Appeal Haring as requested was in breach of SI 146 of 2000 and is a major plank of the Complainant’s case for a Constructive Dismissal.

However, the question to be considered is the gravity of this breach and the Complainants’ actions in response.

Considering the background, the Verbal Warning was just that, albeit confirmed in writing and signed for by the Complainant. The Warning is clearly of a First Stage nature. The statement is made in relation to the behaviours referred to

“This is unacceptable, if it occurs again you will be issued a written warning”

Warning of the 12/07/2018

To a Reasonable Observer this is a low-key warning. Put bluntly there was no dismissal or threatened dismissal, no Financial Penalty was involved, and a New Employment Contract was offered late in July.

It would be quite a leap of conjecture to make the argument, to a reasonable observer, that the Warning was a subject matter of such grave consequence as to justify a Constructive Dismissal.

3:3 Summary and Conclusions – Unfair Dismissals Act complaint. CA-00023597-003

Taking the Two Tests of Breach of Contract and Unreasonable Behaviours I came to the conclusions that

1. No Fundamental Breach of Contact occurred.

2. The low standards of Employer/Respondent Unreasonable Behaviours such as to warrant a Constructive Dismissal case was not demonstrated by the Complainant. It was not evident from the evidence.

3. The Respondent made a mess of the Appeals situation but in the context of a low-key Verbal Warning this was not of sufficient Gravity to warrant a Constructive Dismissal claim.

On balance from these points and having considered all the evidence both written and oral I could not come to the conclusion that a Constructive Resignation was an appropriate employee response.

Accordingly, the claim for Constructive Dismissal is not accepted and is set aside.

3:4 CA-00023597-001 Annual Leave complaint.

Having considered all the evidence I came to the view that the Complainant had overtaken her paid Annual Leave. On Resignation she was accordingly not due any outstanding leave.

Accordingly, I do not find the claim to be Well Founded and set it aside.

3:5 CA-00023597-002 - Public Holiday complaint.

The issue in contention here is two Public holidays. However, on the Respondent evidence of overtaken leave it is not unreasonable to accept the Respondent argument that the days of paid overtaken Annual leave are sufficient compensation for the two Public Holidays.

Accordingly, I do not find the claim to be well founded and set it aside.

4: Decision:

Section 41 of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Act	Complaint/Dispute Reference No.	Summary decision /Please refer to Section Three above for detailed Reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023597-001	Claim not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00023597-002	Claim not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00023597-003	Claim for Constructive Dismissal Not Well Founded. The Complainant did not meet the required standards in the two Constructive Dismissal Legal Tests. There was no Fundamental Breach of Contract and the Employer Behaviour was not of such an egregious or outrageously bad nature as to warrant a Resignation.

Dated: 12th June 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee