Complainant

Respondent

Anonymised Parties

Porter

Hotel

Representatives

The claimant represented himself

Liam J Sheridan Sheridan & Co, Solicitors

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-00023111-003

08/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00023111-001

08/11/2018

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

CA-00023111-002

08/11/2018

The claimant was employed as a porter with the respondent for 2 periods – initially from the 5th Sept. 2012 to the 19th May 2014. He returned to work in September 2015 and alleges that he was constructively dismissed on the 23rd August 2018.

The claimant submitted the respondent was in breach of the Terms of Employment (Information) Act 1994 for failing to furnish him with a new employment contract when he returned for his second period of employment on a one day a week basis.

The claimant made submissions on the definition of bullying in the context of his claim under the Industrial Relations Act and invoked the provisions of Ruffley v The Board of Management of St. Anne’s School (2017).

The claimant submitted that bullying was a normal part of the behaviour of relevant people within the hotel and “as such went unchecked”. The claimant chronicled allegations of bullying and disrespectful behaviour by named colleagues as well as the owners of the hotel and their sons. The claimant asserted that he spoke to the wife (Mrs. G) of the owner of the hotel about these behaviours and that on 2 of those occasions Mrs. G had satisfactorily dealt with his complaints.

The claimant asserted that on 2 occasions he was spoken to by Mrs. G about his shirt not been ironed.

The claimant made specific allegations of inappropriate behaviour by the hotel owner Mr. TG and both of his sons.

The claimant set out his account of his final day at work – he stated that he was clearing bottle skips when he was told by Mr. TG to iron and tuck in his shirt. The claimant alleged that Mr. TG’s tone was arrogant and sarcastic and contended that because of the distance between him and Mr. TG and given that he was wearing a waistcoat it would not have been possible to ascertain whether or not his shirt was ironed .The claimant stated that he then did a “Facebook live and shared my story” and that a former employee rang him to thanks him for exposing the culture of bullying within the hotel.

The claimant went on to say that on the day he walked out – 23rd August2018 - he was informed that he was no longer responsible for checking the alcohol / spirits order; he was relieved of that duty after 6 years. The claimant submitted that throughout his 6 years in the hotel, his judgement or integrity had never been questioned. He submitted that if there was a difficulty with his performance it should have been pointed out to him.

The claimant submitted that the respondent was in breach of fair procedures and natural justice. He contended that under the hotel’s handbook there was nobody appointed by name to deal with grievances. The claimant submitted that because this was a family run hotel, fair procedures would not be followed and submitted that notwithstanding the provisions of the hotel’s bullying and harassment policy, the hotel had not identified / selected staff to act as contact persons. The claimant contended that the respondents letter of the 27th.November supported his contention that fair procedures were not followed by the respondent.

In terms of mitigation of loss, the claimant confirmed that he had completed his law degree and was awaiting income from his debut single which had 4.2 million streams. The claimant made further unsolicited submissions post the hearing on mitigation of loss.

The claimant stated that he waited for 8 weeks before referring his complaint to the WRC- he suggested that if someone had reached out he would have responded but the offer of mediation came too late. The claimant stated that Mr.TG had made it clear that there would be no room for discussion. He stated that he could not have confidence that Ms.AG would deal with his complaints because she was a family member. While the claimant accepted that he had received a handbook in 2012, he stated that he received no training on same.

A former colleague of the claimant’s gave evidence of her experience of working in the hotel and was critical of the respondent’s failure to manage conflict and respond to the distress this caused her. She asserted that part time work was not facilitated and recounted her experience of having collapsed in the hotel when nobody phoned for an ambulance. The witness stated that “ we didn’t have a person to complain to “ and asserted that she complained several times to the financial controller. The witness set out her account of grievances she had in relation to annual leave and how it was managed by Mr.TG who wanted her to change her dates for periods when she had planned to travel home to Eastern Europe. Ultimately, she resigned and obtained alternative employment.

Introduction

The Claimant commenced working for the Respondent on the 5th September 2012 in the role of a Day Porter. The Claimant continued in this role until the 19th of May 2014 when he took some time off work for personal reasons. He returned to work in September 2014 in the same role, under the same terms and conditions as previous.

The Claimant continued in this role until the 24th of August 2018 when he resigned by email.

The within complaints are under section 7 of the Terms of Employment (Information) Act 1994 and section 13 of the Industrial Relations Act 1969. In the Claimants submission he also refers to constructive dismissal. However, he has not brought the claim under the appropriate Act nor within the time limit. This issue shall be dealt with in the legal submissions at a later juncture.

Factual Background

The Respondent operates a four-star hotel in the West.

The Claimant signed his terms and conditions of employment on the 5th of September 2012. He also acknowledged receipt of the Staff Handbook on the 6th of September 2012.

The Claimant continued in this role until the 19th of May 2014 when he took some time off work for personal reasons. The Claimant was issued a P45 at this stage. He returned to work in September 2014 in the same role, under the same terms and conditions as previous. He did not receive new terms and conditions of employment at this stage.

In relation to the Claimants complaint regarding the bullying and harassment procedures they are contained in the staff handbook. He never engaged with them or the grievance procedure which is also contained in the handbook.

The Claimant walked out of work on the 23rd of August 2018. He then proceeds to stream live on Facebook raising issues with the hotel and the family who run it. The Claimant has done this on a number of occasions. The Claimant then provided his resignation by email on the 24th. This was

accepted by letter on the 29th of August. Whilst normally the Respondent would engage with the party to resolve the issues given the Facebook posts and the content of same the relationship has deteriorated to such an extent this is not possible.

Legal Submissions

Given the written evidence of the Claimant’s terms and conditions and his acknowledgement of receipt of the staff handbook which contain the bullying and harassment procedures, and the grievance procedure the Respondent has complied with the relevant legislation.

Whilst the Claimant has not brought his claim under the Unfair Dismissals Act, his statement amounts to a constructive dismissal claim. This should not be entertained as he is out of time. The Claimant’s claim outside of the within Complaint is Statute Barred by virtue of the provisions of the Workplace Relations Act 2015 and in particular section 41 thereof. Any other claim would be instituted more than 6 months after the alleged date of termination of employment. The relevant date for the purpose of the determining whether the matter is statute barred is the date of accrual of the action, not the date of knowledge. In HSE v Whelehan1 the Labour Court found

1 Labour Court Determination EDA 0923

2 Rathfarnham Delicatessen Ltd v Nolan UD295/2002

3 DWT38/2003

“A time-limit of the type in issue is analogous to a limitation period for the bringing of actions in civil law. It is settled law that limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary”.

Clearly the date of termination was the 24th of August 2018 when the Claimant sent the email of his resignation.

Time limit

Section 41 (8) states

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

Thus, the Adjudication Officer can only entertain a complaint which is outside of the 6-month time limit if the Adjudication Officer is satisfied the failure to present the complaint was due to “reasonable cause”. Thus far no cause, reasonable or otherwise, has been put forward by the Claimant. The onus is on the Claimant to establish that reasonable cause has been shown, and the Claimant must show that the “reasonable cause” prevented or inhibited the timely presentation of the complaint2. Finally, the Workplace Adjudication Officer must determine that the “reasonable cause” affords them a justifiable excuse for the delay.

In Cementation Skanska v Carroll3 the Labour Court stated the onus is on the Complainant to show that there were “reasons which both explain the delay and afford an excuse for the delay”. The Court went on to say

“The explanation must be reasonable, that is to say that it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression ‘reasonable

cause’ appears in statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he [or she] would have initiated the claim in time”.

This situation is comparable to that of the Minister for Finance v Civil and Public Service Executive Union4. Laffoy J was dealing with claims brought pursuant to section 19(5) of the Employment Equality Act 1977. This provided a time limit of 6 months from the date of the first occurrence of the alleged discrimination act. The section also provides for “reasonable cause” to extend the time. In the context of the Statute of Limitations 1957 in the absence of evidence that the plaintiff was under a disability of a type that prevents the statutory limitation period running, the absence of subjective knowledge on the part of the claimant of his or her constitutional or legal rights, or that an action is likely to be successful, does not prevent a cause of action accruing and time running under the Act.

4 [2016] IEHC 145; [2007] 18 ELR 36

5 [1991] ILRM 301

6 Ibid p.315

7 [2001] 1 IR 190

8 EET 1/2012

Laffoy J compared “reasonable cause” to “good reason” quoting Costello J, as he was then, in O’Donnell v Dun Laoghaire Corporation5

““The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] I.R. 181)6”

This passage has been approved by the Supreme Court in De Roiste v Minister for Defence7.

In Abbott Vascular v Baggott8 EET 1/2012 the Labour Court asked itself whether

“a reasonably diligent person, having the same state of knowledge of the material facts as the complainant, would have delayed in pursuing a claim under the Act for the reasons advanced by the complainant”.

It is the Respondent’s respectful submission that using this objective standard there is no cause, reasonable or otherwise for the Claimant’s delay.

If the Adjudication Officer finds there is “reasonable cause” then they retain discretion as to whether or not that “reasonable cause” is appropriate in the circumstances to grant an extension of time.

In Department of Finance v IMPACT9 the Labour Court said that, in considering if reasonable cause exists, it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it. The Court continued:

9 EET 2/2004 (reported at [2005] E.L.R. 6),

10 Conway v Ulster Bank Ltd UD474/1981

11 Barry v Quinn Insurance Ltd UD1775/2010

“While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

It is the Respondent’s submission that the Claimant does not have an arguable case, good or otherwise on its merits. Taking the Claimant’s case at its height it does not meet the criteria for bullying and harassment. Nor did he engage in any internal grievance procedures. There is a strong onus on the Claimant to show they used all internal mechanisms open to them. This did not occur here and thus the Claimant does not have a strong case.

There has been no explanation of the Claimant’s delay and thus the complaint is statute barred.

Taking the substance of the Respondent’s claim, the Claimant was not constructively dismissed, he chose to terminate his employment. The burden of proof rests on the Claimant to show that there was a dismissal. Here the Claimant cannot prove this. There were no words spoken which would imply, either subjectively or objectively, that the Claimant was dismissed. The Claimant must show his resignation was not voluntary. His resignation was entirely voluntary as exhibited by his email.

Grievance Procedure

There is a mandatory obligation on the Claimant to exhaust all internal grievance procedures before he can claim constructive dismissal10. He must also have used all rights of appeal in the procedure11. Here the Claimant cannot prove this. He never used any stage of the grievance procedure.

There are two tests for constructive dismissal, the contract test and the reasonableness test. The Respondent submits that neither of them are proven in this case.

Contract Test

The Contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ J1114-6 at p.7 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 discharged from any further performance”.

The Respondent was not guilty of any fundamental breaches of the contract of employment.

The Claimant must show the precise scope of the contract. The Claimant has not pointed to any breaches of his written contract.

Reasonableness Test

The test here is whether or not the conduct of the employer is so unreasonable that it entitles the employee to treat the contract as being at an end and justifying the involuntary resignation of the employee. According to the Labour Court in An Employee v A Worker (2005) 33 ED 02/57 Determination No. EED 0410

“This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with any longer”.

The situation here is comparable with that of Farrell v Heatons Ltd [2002] 8 JIEC 2901 as the Claimant was walking out of work after an argument, the financial manager advised her to use the grievous procedure. She did not. The EAT found that leaving without using the grievous procedure is not reasonable, walking out must be the last resort.

In O’Regan v Ascom-Rohcom Ltd [2004] 2 JIEC 2502 there was a conflict of personalities. Despite meetings being held nothing changed. The EAT found the Claimant had failed to discharge the onus on her to show that she was entitled to terminate her contract of employment or that the employer's behaviour was so unreasonable that she had good grounds for leaving her employment. I would submit there is a similar failure here.

Bullying

The definition of Workplace Bullying is that set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) Declaration Order 2002

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

It is submitted on the Respondent’s behalf that the behaviour, taking it at its height, detailed by the Claimant falls far short of that required by the Declaration Order 2002.

The Supreme Court considered the area in detail in Ruffley v Board of Management of St. Ann’s [2017] IESC 33. That case focused on the issue of whether flawed disciplinary procedures can amount to bullying. O’Donnell J analysed the definition of bullying noting

“I would caution against viewing these three matters as separate and self-standing issues as if in a statutory definition. To some extent these terms take their colour from each other and the concepts are incremental. It is, in my view, important for example to recognise that in considering the question of repeated conduct, it is necessary to remember that what is required to be repeated is inappropriate conduct undermining the individual’s dignity at work and not merely that the plaintiff be able to point to more than one incident of which he or she complains.”

The Claimant has failed to point to more that isolated incidents.

O’Donnell J put the test in the following terms

“it is a single definition and a single test: was the defendant guilty of repeated inappropriate behaviour against the plaintiff which could reasonably be regarded as undermining the individual’s right to dignity at work?”

Objectively that has to be answered in the negative.

Witnesses

1. T G Jnr , Manager

2. S.M , Human Resource Manager

Conclusion

In light of the foregoing, the Respondent hereby seeks a finding that the Claimants claim is unfounded.

In her direct evidence Mrs. A.G asserted that she dealt with problems and conflict in accordance with the hotel procedures and would have provided an independent party to hear the claimant’s issues but was never given an opportunity to do so. She stated that she never got any written complaints from the claimant and when he did complain verbally, she dealt with the matter and understood the claimant was satisfied with her interventions. The witness stated that she had served on Enterprise Boards and had acquired experience over a long number of years on staff handling and Dignity at Work. Mrs. G set out her account of how she dealt with the complaints raised by the claimant while in the hotel’s employment. She stated that if the claimant’s shirt was not ironed she would ask the claimant to iron or replace it. The witness stated that she had a good working relationship with the claimant. She stated that if a grievance could not be resolved in house she would have asked a HR consultant to deal with any such complaint. Mrs. G stated that this was the first time she was before the WRC and she was very disappointed with the sullying of the hotel’s reputation by the claimant’s Facebook posts. She stated that the hotel staff were afraid of being drawn into the situation.

Under cross examination of Mrs. G by the claimant, the claimant denied the witnesses accounts of her handling of his complaints. The claimant insisted that his shirt was ironed and stated that he did not want to disrespect Mrs. A.G.

Mr. TG stated in evidence that the claimant’s colleague had been granted 10 days + 4days leave over a 2 week period – he stated that when it became apparent that leave was being sought over a 3 weekend period he asked D to deal with it. He asserted that the respondent was unaware of the claimant’s illness or that she had been under severe stress.

In summing up the respondent’s position, their representative submitted that while the claimant had a list of complaints, they were dealt with informally and satisfactorily to avoid their getting out of control. It was submitted that the fact that this was a family hotel did not mean there is not a grievance procedure – there were written procedures and policies in place. The claimant had not raised a grievance in relation to his final day at work – in order to resolve anything, the matter would have to be brought to the attention of the respondent and it was not. The claimant had failed to complain to the hotel and took the decision to leave and resign and proceed to embark on his Facebook posts.

Section 1 of the Unfair Dismissal of Act, 1977, defines constructive dismissal as follows:

“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,”

Significant legal precedent exists which establishes that breach of contract requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.

The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their own action/behaviour in resigning was reasonable in all the circumstances.

In a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign based on their employer’s conduct.

With respect to the burden of proof, the Employment Appeals Tribunal (EAT) held, in UD 1146/2011, that “in such cases [constructive dismissal] a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

This was further confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the onus is on the claimant to prove his case” and that “the test for the claimant is whether it was reasonable for him to terminate his contract”.

As has been contended by the respondent, it is well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated: “The notion places a 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 her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

The claimant’s letter of resignation is quoted below….

“I resign from the …………Hotel.

I will be taking legal action against the ….. Hotel for harassment, intimidation and bullying.

The primary culprit is TG Jnr.

This law suit can be avoided by his immediate resignation. I don’t have issues with T Snr , A or Ad.

The …… Hotel have until 5p.m. to resolve this .It is a sad day , but this is how it is.

I will be going live on FB to update people.

Yours Truly”

The fact that the hotel was a family run business did not preclude the application of a fair and transparent complaints procedure as suggested by the claimant. While acknowledging the claimant’s concerns in relation to fair procedures in a family run hotel, the claimant in his written submission the claimant specifically referred to 2 complaints he had previously made and which had been dealt with internally to his satisfaction. Having considered the entirety of the evidence presented, I have concluded that the claimant acted unreasonably in leaving his employment without affording the respondent an opportunity to address the claimant’s grievances. In all of the circumstances I find that the claimant failed to meet the high threshold required to sustain a complaint of constructive dismissal and accordingly I do not uphold the complaint. I am satisfied that my   conclusions are consistent with EAT determinations UD1350/2014 and UD 866/1999.

Constructive Dismissal