Complainant

Respondent

Anonymised Parties

A Head Chef

A Restaurant

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-00031044-001

20/09/2019

The respondent operates two restaurants which I will refer to as “Steak” and “Fish” and the complainant commenced working in the Steak restaurant on July 14th 2017.   She was employed as a head chef.   She resigned almost two years later, on May 31st 2019, giving two weeks’ notice and her last day at work was June 14th. The complainant claims that she had to leave her job “due to the conduct of my manager and lack of appropriate reaction from my employer.” The general manager attended the hearing of this complaint, with a director of the company. Another manager was also involved in the issues that arise here, but he has since left the company. I will refer to him as the senior manager.

On behalf of the complainant, Mr Dorda said that the manager of the restaurant where the complainant worked was unprofessional, interacting with her in an aggressive tone and that he verbally bullied her. When she complained to the senior manager, the complainant’s concerns were not addressed adequately or fairly and she had no option but to leave her job.

Incidents Leading to the Complainant’s Resignation

The complainant had been in her job for almost two years on May 16th 2019 when she sent three separate emails to the senior manager about three incidents that occurred between April 16th and May 2nd. After her resignation, on June 16th 2019, she sent details of four incidents to Mr Dorda.

On April 16th, the complainant arrived at work 45 minutes early at 3.15pm. The restaurant was scheduled to have an inspection by a HSE Environmental Health Officer and she wanted to do some preparation. When she was at the back of the restaurant checking the bin area, the complainant said that she heard the general manager shouting, and calling her name.   The complainant said that when she came into the restaurant he said, “why weren’t you here?” in an angry and dismissive tone.

On April 23rd, at 10.48am, the complainant said she got a text message from the general manager telling her that a company that carries out environmental health audits were in the Steak restaurant for an unannounced inspection. She said that she was due to start work at 1.00pm, but she made her way to work immediately, arriving at 12.15pm. Two chefs were rostered to work that day, and when she arrived, one of the chefs was assisting with the audit, leaving one chef in the kitchen. As a result, food orders to the restaurant were delayed. The complainant said that the general manager commented that he was not happy with the kitchen that morning. She said that he shouted at her, claiming that the two chefs were not “strong enough” and that he wanted a senior chef on duty in the mornings.   The complainant said that the two chefs on duty witnessed this altercation. She said that she asked her manager to stop shouting at her.

The monthly staff meeting was scheduled for Monday, April 29th at 5.00pm. Some of the staff in attendance were on a scheduled day off and the start of the meeting was delayed for 15 minutes to give an off-duty staff member time to arrive. Two kitchen porters were carrying out a deep clean in the kitchen and the complainant gave them permission not to attend the meeting so that they could finish work at 6.00pm. When she informed the general manager that she had permitted the kitchen porters to continue with the cleaning, the complainant said that he shouted at her in front of all the staff at the meeting, saying “then why the f*** am I here? This is my day off!”

On May 2nd, the complainant said that she was working at “the pass” in the kitchen and a staff member asked her for two carrots and she told her that they were in the walk-in storage area. Within minutes, the complainant said that the general manager approached her in an aggressive tone, saying, “what’s going on, you were asked to get them.”   When the complainant attempted to explain that she had told her colleague where to find the carrots, her manager replied, “you’re already getting on my nerves, when you’re asked to get something, get, it.”

It appears that when he received her emails, the senior manager spoke to the complainant. At 7.00pm on May 16th, he sent her an email saying,

“Further to our conversation today, you said that you do not wish to raise a formal grievance.”

On May 18th, he sent her a further mail saying,

“I need to investigate the concerns you have raised and I am unable to provide you with what will happen next until I have completed my investigation.”

The senior manager is longer working in the company.

On Monday, May 27th, the complainant received an email from the company director who attended the hearing of this complaint. He informed her that she was to report to the Fish restaurant on Saturday, June 1st. The Fish restaurant is around 5.5 kilometres further away from the complainant’s home, compared to the Steak restaurant. The complainant included a copy of the email in her submission at the hearing, which was also copied to the manager of the Fish restaurant.   The director said:

“Dear (Complainant’s name)

(Complainant) you will be rostered from this Saturday 1st June for a week in (Fish restaurant). Please make the appropriate changes to the roster for (Steak restaurant) without you.

(Name of manager) could you include (Complainant) in the roster for the kitchen in (Fish restaurant) for the week commencing 1st June 2019 please. If it suits the kitchen in (Fish restaurant) could you rotate (Complainant) on the different sections so she can identify all the areas where both restaurants differ.”

Mr Dorda said that the complainant was shocked when she was asked to work in the Fish restaurant, as she had not been consulted and there appeared to be no clear reason for the decision.

On May 31st, the complainant decided to resign. There had been no progress with regard to the investigation into her complainant and Mr Dorda said that it seemed as if it had fallen on deaf ears.   She was mentally and emotionally stressed and her employer’s failure to investigate her complaint amounted to a failure in their duty of care to her. A copy of her resignation letter was submitted with the respondent’s documents and it reads as follows:

“Dear (General Manager)

It is with sadness that I handed in my (notice) to you yesterday 30/05/2019. Therefore, I am confirming this to you today. And I would really like to thank you for the wonderful opportunity you gave me. It’s been quite a roller coaster of a ride with lots of good things and of course bad, but f*** it, we’re not dead. Obviously, I have not sent you and (the Company Director) the same email. As they relate to two very different people.   You and I had a good chat yesterday and I gave you my open and honest reason for my decision. As I stated, I will not be taking my eye off the ball until my notice is worked and I am now requesting to finish 14/6/2019. This is to the best of my knowledge officially two years with the company. And I would like to work a short shift, let’s say 11 – 4 if that’s okay with you.   I am also re-confirming that I meant what I said that if you’re ever stuck you have my phone number and if I can help you I will do so with no hesitation.

Kind regards…”

The complainant’s letter of resignation that she sent by email to the company director was not dissimilar, and read as follows:

“Dear (Company Director)

It is with some sadness that I hereby confirm that I have chosen to hand in my notice as of the 30/05/2019.

It has been a roller coaster of a ride this is both positive and sometimes no so. I have learned a great deal from the experience of working with the company.   And I will take it with me wherever my next journey takes me. I have never left a job on bad terms in my career and I will not start now. I honestly appreciate you giving me the opportunity to work as head chef in the (Steak restaurant) and I would like to give a full two weeks’ notice and my last shift on Friday, 14/6/2019. This is to the best of my knowledge officially two years with the company. Also I spoke to (General Manager) at length yesterday, to say that if he was ever stuck I would be more than happy to help.

Kind regards…”

Evidence Given at the Hearing

At the hearing, the complainant said that her job with the respondent “wasn’t always bad.” She said that she considers herself to be a strong person, but that she couldn’t cope with the way she was spoken to.   She said that she didn’t leave on bad terms. She said that she expected an outcome from the mails that she sent to the senior manager on May 16th 2019. On May 18th, she said that he sent her an email saying that he needed to investigate the issues she raised before he took any action.

Concerning her losses, the complainant said that she started a new job the week after she finished with the respondent, but that she left after one day, and then she was unemployed for six weeks. She is working again now, but she earns about €10,000 per year less than what she earned with the respondent.

In support of the complainant’s position, her former colleague said that the way that the general manager spoke to the complainant was “unnecessary” and in his view, he wouldn’t speak to a man in the same way. He thinks that the manager was trying to intimidate the complainant and he said that there were more than four incidents.

Legal Precedents

Mr Dorda referred to the following case law in support of the complainant’s case that her resignation amounts to an unfair dismissal:

Murray v Rockabill Shellfish Limited, [2012] ELR 331

In this case at the Employment Appeals Tribunal (EAT), the Tribunal considered whether the employee was entitled to terminate his contract due to his employer’s conduct. The Tribunal held that,

“An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract of which shows that the employer no longer intends to be bound by one or more essential elements of the contract.”

Brady v Newman, UD330/1979

Here, the Tribunal concluded that,

“…an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him and so also must the employer behave.”

Chronology of Events Leading to the Complainant’s Resignation

The complainant joined the Steak restaurant as head chef in July 2017. On behalf of the respondent, Ms Weatherstone said that, on a frequent basis up until May 2018, the general manager received complaints from customers alleging that they had suffered from suspected food poisoning.   None of the cases were confirmed, but the management took them seriously.

The restaurant is inspected every year by an Environmental Health Officer from the HSE. In May 2018, the company contracted a hygiene audit company to carry out mock inspections every quarter. The first such inspection was in May 2018 and problems in the kitchen were identified. The manager spoke to the complainant about the issues that needed to be addressed.

In October 2018, the audit company returned to do another mock inspection. The results were worse than the May review and the kitchen had the same serious issues. The general manager sent the complainant an email listing the problems that needed to be addressed. In January 2019, the problems were worse still and the kitchen was found to be below standard regarding cleanliness, sanitation, storage, cross-contamination and personal hygiene.

On January 15th, the complainant was requested to attend an investigation meeting, followed by a disciplinary meeting on January 31st. Following the disciplinary hearing, on February 4th, the complainant was issued with a final written warning.

The complainant appealed against the issuing of the written warning and her appeal was heard on March 21st by the director who attended this hearing at the WRC. On April 15th, the company director who heard her appeal decided that the warning would remain on her file. Before she left the company, she submitted a complaint about this warning to the WRC.

On April 6th 2019, a number of customers complained following a Saturday night dinner in the Steak restaurant. The manager sent the complainant an email on April 10th, asking her to explain the background to the customers’ concerns.

Because of the poor outcomes from the mock inspections and the complaints from customers, the manager and director decided that it would be useful for the staff in the Steak restaurant to observe how things worked in the Fish restaurant and, by example to improve the workings in each kitchen. On April 13th, the director sent an email to all the staff in the Steak restaurant saying, “this weekend is the beginning of staff from one restaurant doing shifts in the other restaurant that isn’t their normal place of work. The purpose of this is to improve any aspects of (the restaurants) by observing and experiencing the other location.” It appears that the complainant spent a day in the Fish restaurant shortly before April 15th, because on that day, she sent an email to the director thanking him for the opportunity to observe that operation.   A copy of her email was submitted with the respondent’s book of documents. The complainant had huge praise for every aspect of the kitchen, including the staff, how the head chef communicated with them and the food quality.

On April 16th, the complainant was issued with an informal written warning because she had been late for work for six shifts in a row.

The respondent’s submission contains a letter of April 23rd from the general manager to the complainant regarding another mock inspection of the Steak restaurant. The manager provided the complainant with details showing that, under most of the inspection criteria, apart from food storage, the scores had improved. The final paragraph of the letter states as follows:

“Overall I am happy with the improvement of these key sections but now food storage issues / risk of contamination has now been identified as an area we need to improve immediately and monitor more closely.   Please go through the report with your team and take the appropriate action.”

Following a management meeting on May 13th, the complainant told the senior manager that she was having difficulties with the general manager. She followed this up with an email on May 16th, describing the incidents that she was concerned about. The senior manager replied on the same day:

“Dear (Complainant)

Further to our conversation today, you said that you do not wish to raise a formal grievance. Could you please confirm this? If you do have any concerns, we would be happy to facilitate you through the grievance process. If you do wish to change your mind, please submit your grievance in writing to (name of a different manager).

If you have any questions in relation to this, please contact me at (phone number).”

On May 18th, the senior manager wrote to the complainant and said that an investigation would have to take place before any decision could be made regarding the general manager’s conduct. The complainant did not take the matter any further.

The respondent’s submission includes a copy of a letter sent to the complainant on Sunday, May 19th.   In this letter, the general manager said that “overall food and service this weekend were good” but he listed three food-quality issues that had to be addressed.

On May 30th, the complainant told the general manager that she had secured a job as a head chef in another restaurant and that she would be leaving in two weeks.   She finished up on June 14th. On June 28th, she phoned the general manager to ask him if she could return to her job in the Steak restaurant. At that point, her job had been filled.

The Respondent’s Case Regarding the Complaint of Constructive Dismissal

In his evidence at the hearing, the general manager said that the complainant became unhappy following the issuing of the written warning. She was late six shifts in a row and on some evenings in the restaurant, he said that the service was appalling. Following a management meeting on May 13th, the complainant and her colleague called the senior manager aside and spoke to him about what they considered to be problems with the general manager. The general manager said that he was advised to communicate with the complainant from then on by email.

Regarding the staff meeting on May 29th and the absence of two kitchen porters who were cleaning, the general manager said that he didn’t use profanities, but said, “why am I here? Regarding the “carrot” issue, the general manager said that he could have been assertive, but that again, he did not use profanities.

The complainant was asked if she wanted to lodge a grievance and she had a copy of the company’s grievance procedure, but she declined to do so. She was informed in advance of the requirement to work in the Fish restaurant, and at the time, had no issue with the request to work there for a week to learn how the kitchen there operated.

Pointing to the high bar that must be cleared for a complainant to establish a complaint of constructive dismissal, Ms Weatherstone said that the fact that the complainant worked her notice would appear to contradict the definition of constructive dismissal at section 1 of the Unfair Dismissals Act 1977 – 2015 (“the Act.)”

Ms Weatherstone concluded the respondent’s case by saying that the complainant was not constructively dismissed, but that she left her job of her own accord when she found alternative employment. She worked out her notice and from all the correspondence available, she appeared to have a positive relationship with her manager, to the extent that she phoned him a week after she left and asked for her job back.

Legal Precedents

Ms Weatherstone referred to the following case law in support of her argument that the resignation of the complainant cannot be held to be an unfair dismissal:

Nicola Coffey v Connect Family Resource Centre Limited, UD 1126/2014

This case at the EAT addressed the challenge to an employee to establish the grounds that a resignation amounts to a constructive dismissal.

A General Operative v A Religious Society, ADJ-00002814

Here, the adjudicator held that,

“The critical issue is the behaviour of the employer, although the employee’s behaviour must be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment…in effect, the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.”

Ruffley v The Board of Management of St Anne’s School, [2017] IESC 33

In this case at the High Court, Mr Justice Charleton stated:

“Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point out faults. It may be necessary to bring home a point by engaging in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must be taken in the right spirit.”

Higgins v Donnelly Mirrors, UD104/1979

Here again, the Tribunal rejected Ms Higgins’ claim of constructive dismissal because she failed to discharge the heavy onus of the burden of proof in such cases.

Conway v Ulster Bank Limited, UD474/1981

The Tribunal found that he complainant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue to be examined here is, taking into consideration the facts of this case and the evidence of the parties at the hearing, was it reasonable for the complainant to claim that she had to resign because of her manager’s conduct?

The Reasonableness of the Employee’s Decision to Resign

All of the evidence submitted at the hearing of this complaint points to a positive relationship between the complainant and the general manager during her employment, but particularly when she handed in her notice. In the letter of resignation that she sent to the line manager, she was friendly and informal, using the “f” word with ease, whereas the letter to the company director was formal, but still warm and appreciative. From this, it’s clear that the complainant had a reasonably familiar and up front relationship with the general manager, and there’s no sign that, at the time of her resignation, he had caused her to be upset or that she was the victim of bullying. In her letter, she expresses her appreciation for the opportunity to work for the company, she offered to help out if she was needed in the future and, following her departure, she asked if she could come back.   All this flies in the face of the complainant’s claim that she had to leave her job because of bullying.

On May 16th, the complainant sent the senior manager three examples of verbal altercations between her and the general manager that occurred in the two weeks between April 16th and May 2nd. April 16th is the day on which the complainant was issued with an informal warning about her lateness. At the end of April, the other chefs brought an issue of concern to the attention of the general manager and on May 2nd, he sent her a formal letter asking for an explanation. It is not an unreasonable assumption that relations between the complainant and the general manager may have been strained in April and early May 2019. It must be difficult to come to work every day with a final written warning hanging over your head, and apart from this, other issues were cropping up.   However, a strained relationship is not the same as bullying or harassment, and, to repeat the quote from Mr Justice Charleton in the Ruffley case, “Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must be taken in the right spirit.”

It is clear from the emails from the complainant that were included in the respondent’s book of papers that, when she spent some time in the Fish restaurant, she derived enormous benefit from the experience. It seems to me that she was inspired to try to emulate some of the ways of working when she returned to the Steak restaurant. She identified a bad-tempered chef as a blockage to her potential success and she asked for help to deal with him. For this reason, I can see no basis for her grievance about being asked to work in the Fish restaurant for one week from June 1st 2019. I find that, as she was given five days’ notice, this request was not unreasonable and was her best interests.

Regarding the complainant’s allegation that her complaint of bullying was not addressed, it is apparent that she decided that she did not want to pursue a formal investigation into this matter, although it remained open to her at all times to do so.

Findings

It is well established that the burden of proof required in cases of constructive dismissal is a high bar for a complainant. The case law cited by the parties at the hearing of this complaint points to the mutuality of the relationship between an employee and an employer and the requirement for reasonable behaviour on both sides. I accept that there may have been robust exchanges between the general manager and the complainant about the very serious problems in the kitchen in the Steak restaurant. However, the predominant tone from all the evidence, is that their communications were generally measured, with no disrespect on either side.

Two weeks before she resigned, the complainant told the senior manager about three incidents in which she claims that her manager was aggressive and rude. She also told him that she didn’t want to make a formal complaint. Whatever her reasons for not doing so, the Conway v Ulster Bank decision has established that a complaint of constructive dismissal cannot stand up unless an employer has an opportunity to remedy the possible cause.

It’s clear from her evidence that the complainant liked her job and that, when she was leaving, she got on well with the general manager and was grateful for the experience of working for him. We know that when she handed in her notice, she had another job lined up. From the facts presented at the hearing, it is reasonable to conclude that the complainant left her job because of the many difficulties she encountered meeting the standards required of being a head chef in a busy restaurant and not because of how she was treated by her manager.

Taking account of the submissions of both sides at the hearing of this complaint, it is my view that the complainant’s resignation was not caused by verbal bullying or harassment, as she alleged. I find therefore, that the complainant has not discharged burden of proof that demonstrates that she was constructively dismissed.

On this basis of the findings set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal