ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024448
Parties:
| Complainant | Respondent |
Anonymised Parties | A Hotel Employee | Hotel |
Representatives |
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Complaint(s):
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-00031125-001 | 25/09/2019 |
Date of Adjudication Hearing: 02/03/2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. Both parties represented themselves. The Complainant had the assistance of an interpreter at the hearing.
Background:
The Complainant was employed as a breakfast chef and carried out other cooking and general duties at the hotel of the Respondent from the 27th January 2018 until his resignation on the 26th August 2019. He is claiming unfair dismissal by way of constructive dismissal. He submits that he was subjected to unacceptable behaviour which, in effect, fundamentally breached his contract of employment and left him with no option but to resign his employment. He was paid a gross weekly salary of €550.00; net €505.67 for a 45-hour week. The Respondent completely rejects the complaint of unfair dismissal and submits that it acted reasonably at all times when dealing with the Complainant and that the Complainant’s resignation was not in any way connected with a fundamental breach of contract by the Respondent. |
Summary of Complainant’s Case:
The Complainant submits that he was constantly abused at work both in a physical and verbal manner. He asserts that he made numerous complaints to his employer which were not investigated fairly. He believes that a contrived bullying complaint was made against him to force him from his employment. He also contends that he was not allowed to speak Polish with other Polish staff.
He asserts that the final act which made him resign was when a contrived bullying complaint was made against him and where there was refusal by the Respondent to furnish him with specific details of the bullying charges, despite a request from the Complainant.
The Complainant submitted documentation outlining the complaints he made against his employer. He asserts that he has been greatly stressed by his experiences at the Respondent’s hotel and that he is under continual medical care because of the unacceptable behaviour.
He submits he is presently working but was not prepared to give evidence of mitigation of loss or details of his present employment circumstances.
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Summary of Respondent’s Case:
The Respondent completely rejects the arguments of the Complainant and asserts that it was the Complainant who engaged in unacceptable behaviour. The Respondent submits that it treated the Complainant fairly and reasonably at all times. The Respondent further submits that it was clear that the Complainant had anger issues, and this created difficulties with his work colleagues. The Respondent exhibits documents to show that it went so far as to engage with the Complainant’s G.P to ensure that his welfare was protected and that his medication was safe for work purposes. The Respondent rejects the contention that the Complainant was not allowed to speak Polish with other Polish colleagues. The employment application form was exhibited by the Respondent which showed the Complainant having claimed proficiency in English and Polish. The Respondent submits that there was a broad multi-cultural mix of staff and the chosen language of transaction in the hotel was English, which the Complainant had no issue with in his day to day interactions with his colleagues. The Respondent submits that it takes great pride in its human resources approach and that it has extensive grievance, disciplinary and dignity at work policies. The Respondent asserts that it goes so far as to contact every employee monthly with a questionnaire regarding any issues that they may have at work. The Respondent submits detailed documentation regarding the disciplinary record and behaviour of the Complainant. This includes: · A verbal warning on 1st January 2019 for a refusal to carry out a reasonable instruction, which the Complainant did not appeal. · A final written warning for making an untrue and malicious allegation of assault against a work colleague. This sanction was after a fair, and independent investigation, by an independent investigator who relied upon CCTV footage, and the statements of numerous witnesses. The Complainant accepted that there was a fair investigation and never appealed the final written warning.
The Respondent submits that the Complainant never utilised the Bullying and Harassment procedure regarding any alleged misbehaviour. The Respondent exhibits an email from the Complainant stating that the Complainant was satisfied with his work and that everything was good in the kitchen. This was sent by the Complainant on the 4th August 2019, three weeks before he resigned, purportedly because of unacceptable behaviour directed towards him.
The Respondent submits that a serious bullying complaint was made against the Complainant on the 8th August 2019. The Respondent submits documentation that was copied to the Complainant which contradicts the assertion that the Complainant did not receive details of the complaint. An extensive investigation was carried out where the Complainant was allowed every opportunity to give his side. However, after the investigation, the Complainant refused to attend a disciplinary hearing and resigned instead. The Respondent submits that the person who made the complaint resigned, and the Respondent submits that it could think of no other reason for the resignation but for the continuing behaviour of the Complainant.
The Respondent rejects any notion that the contract of employment of the Complainant was breached at any time. The Respondent believes the Complainant resigned of his own accord, through no fault of the Respondent. |
Findings and Conclusions:
Constructive Dismissal: The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 (the Act) provides for the the concept of constructive dismissal in the following way: “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 Labour Court in Caci Non-Life Limited v Daniella Paone [2017] UDD 1750 stated: “It is well-settled law that a complainant who is advancing a claim of constructive unfair dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Furthermore, it is incumbent on an employee to avail himself/herself of the employer’s grievance procedure before resigning so as to put the employer on notice of the employee’s issues and to permit the employer an opportunity to address them. (See for example the determination of the Employment Appeals Tribunal in Conway v Ulster Bank LimitedUD474/1981).” The Complainant asserts that the conduct of the Respondent was so unacceptable that it fundamentally breached his contract of employment. It is a corollary of this argument that the Complainant must engage in reasonable behaviour in the first instance before he can credibly argue that the Respondent’s behaviour was so unacceptable that it led to his resignation. There was clear and credible evidence from the Respondent, which was not contested, that the Complainant had a serious anger management problem which resulted in disciplinary sanctions against the Complainant. Most serious of all was the final written warning which emanated from the Complainant’s malicious allegation of assault against a colleague, an allegation which was found by an independent investigator to be untrue. Overall, I found the Complainants evidence to be unreliable and unconvincing. For instance, the Complainant submitted documentation of the complaints he made, which purportedly showed him as a victim, but this documentation was shown in evidence to be incomplete and very much out of context. The full sequence of documentation was provided by the Respondent and this painted a more authentic and cogent picture than that painted by the Complainant. Furthermore, I found the Complainant to be evasive and not forthright with answers to legitimate questions that were asked. When I asked the Complainant to supply evidence of mitigation of loss together with details of his current employment, he refused to do so. When the Complainant was asked to confirm that he had sent an email expressing contentment with the workplace some weeks before he resigned, he replied that he sent this email at the behest of his manager. I found this response not to be convincing. Furthermore, there was no evidence presented by the Complainant of having utilised the Bullying and Harassment procedures, though evidence was given that he was given copies all such policies and procedures. The burden of proof required in cases of constructive dismissal is a high bar for a complainant. It requires a complainant to show that the conduct of his employer was either so unreasonable that he had to leave his job, or, that there was such a fundamental breach of his contract of employment that the continuation of his employment untenable. In the case under consideration, I find no evidence that the Respondent acted in such a way as to fundamentally breach the Complainant’s contract of employment. I believe that the Complainant had patent and admitted anger management problems, which in turn resulted in unacceptable behaviour on his part. Having taken all the above evidence into account, I find that the Complainant has not made out the standard of the burden of proof required to demonstrate that the conduct of his employer was such that he had no alternative but to resign from his employment. Therefore, I find that the Complainant was not unfairly dismissed. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim.
CA-00031125-001: I find that the Complainant was not unfairly dismissed. |
Dated: 7th September 2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Constructive Dismissal, Unfair Dismissal |