Complainant

Respondent

Anonymised Parties

A complainant

A respondent

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-00033134-001

16/12/2019

The respondent provides contract canteen services in an educational setting and has just over 200 employees across a number of sites. The complainant worked a one particular school from January 2017 until 19 September 2019. The complainant worked on a series of fixed term contracts for the respondent however it was agreed by both parties that the provisions of the Unfair Dismissals Act, 1977 apply to this employment.

The complainant submitted that the conduct of her employer left her with no choice but to terminate her employment without giving prior notice on 19 September 2019, and therefore constitutes constructive dismissal.

The complainant submitted that for two years prior to September 2019, two employees provided services at this school. In August 2019, in the return following the summer break a number of changes had been introduced and the numbers employed at the location were reduced to one employee only. This coincided with the introduction of a new, more complex menu.

The complainant submitted that she worked alone for a number of weeks, however it became apparent that the job was too much for one person and in order to get the job done, she was regularly starting and finishing work outside of her contract hours.

The complainant submitted that in addition to the difficulties she was having with the workload, she was also having difficulties with her wages. She was directed to contact Revenue but that as it was not straight forward, she had to to-and-fro a bit which was frustrating.

The complainant stated that she contacted her manager on 19 September 2019 to raise these issues with him. The complainant submitted that when he came to the school, he shut the door, was abusive towards the complainant and dismissive of her concerns. He outlined the financial reasoning behind the reduction in personnel, but she stated that she did not believe that she would receive any support in trying to resolve the difficulties.

The complainant submitted that when her manager left, she became extremely upset, she informed the school principal she was leaving and left. The complainant submitted that she was not contacted by her employer to check on her wellbeing or to establish the reason for the out of character course of action she took in leaving.

The complainant accepted that he did not engage with any formal grievance procedure but noted that the company does not appear to have a formal procedure in place.

The respondent submitted noted that any difficulties with the complainant’s wages related to the lack of an up-to-date certificate of tax allowances for the complainant as required by the Revenue Commissioners. It also noted that the hours for which she was paid were the correct hours as provided by the complainant herself.

The respondent submitted that its services were provided between March 2017 and the summer of 2019 by two staff members, however from a financial perspective this had to change.   The respondent submitted that the expected increase in demand for its services did not materialise and accordingly, it made the decision to reduce the staffing complement on the site to one while at the same time moving to a menu that consisted more of food preparation, i.e. re-heating, etc, rather than cooking from scratch on site. The respondent submitted that this menu was easier to manage for one person as there was less actual cooking involved.

The respondent submitted that on the morning of 19 September 2019, the complainant’s manager received a text message which he understood to concern the issue of one person covering the workload. He called to the school later in the morning and met with the complainant.   He indicated to the complainant that the wages issue was a matter that she needed to resolve personally with the Revenue Commissioners. On the issue of additional staffing, he indicated that the costings of the service at the school did not allow for a second staff member. He asked her to consider matters and undertook to come back to her in a few days.

Following the meeting, while heading to another site, this manager received a call from the school stating that the complainant had walked off the job, he immediately arranged for cover to serve lunch to the students.

The respondent denied that there are two staff members providing the service on this site now.   The respondent submitted that the complainant’s conduct constitutes unreasonable conduct and that the complainant gave no indication whatsoever that she was contemplating this course of action.

Both parties gave evidence of the meeting on 19 September 2019, the complainant stated that her manager was abusive to her and dealt with her in an intimidatory fashion.   The manager gave evidence regarding the conduct of the meeting and denied being abusive to the complainant, the manager also referred to his (almost) contemporaneous written account.   Having considered both versions of events, on balance I prefer to version put forward by the respondent.

As to the issue of wages, whilst it is understandable that the complainant was frustrated by the difficulties in trying to regularise her position, it appears that such detail was required in order to comply with the conditions laid down by the Revenue Commissioners.

I note from the evidence that the complainant could have put in for additional pay for the additional hours that she states she had undertaken, notwithstanding that she was in receipt of an allowance from the Department of Employment Affairs and Social Protection, I note the evidence that was presented that she had claimed for additional hours previously.   In response to a query as to why she didn’t put in for the extra hours to which she was entitled she replied that she “didn’t feel like putting in for it”.

Although the complainant has no formal grievance procedure in place, I am satisfied that it was open to the complainant to raise further issues with the respondent for discussion and for further consideration. Accordingly, I am satisfied that walking off the job in the manner in which she did does not amount to constructive dismissal and I find that the complainant cannot rely on this in order to base a complaint for unfair dismissal under the Act.

Having regard to my finding that the events of 19 September 2019 did not amount to constructive dismissal, my decision is that the complainant cannot succeed with her complaint under the Unfair Dismissal Act, 1977.

Constructive dismissal, behaviour