FULL RECOMMENDATION
PARTIES : COMPASS CATERING SERVICES IRELAND LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No 00019865 Mr. Jego, ‘the Complainant’, worked as a Chef for Compass Catering Services Ireland Ltd., ‘the Respondent’, from November 2017 to January 2019, at which point he resigned. He was paid €1080 per week. Following a risk assessment audit which was deemed a ‘fail’, the Complainant was subject to disciplinary proceedings. He also raised a grievance as he felt that he was being blamed unfairly. The Complainant resigned his employment as he said he was fearful that he could, potentially, face prosecution regarding issues with allergens, for which he felt he was being blamed unfairly. The Complainant lodged a claim for constructive dismissal under the Unfair Dismissals Act with the Workplace Relations Commission, ‘WRC’. The Adjudication Officer, ‘AO’, did not uphold this complaint. The Complainant appealed to this Court. SUMMARY OF COMPLAINANT ARGUMENTS: The Complainant made many complaints to the Respondent over issues such as allergens that were not acted upon. The Complainant felt ignored and bullied. The Complainant asked many times to be retrained on allergens but this never happened. The Complainant could not take the risk that he would be prosecuted. He could not guarantee the safety of customers because of the failure of the Respondent to deal with his requests for re-training. He had no other option but to resign. If the Complainant had been given the re-training that he requested he would have stayed in the employment of the Respondent. The Complainant secured a new job in June 2019 at an annual salary of €42,500 p.a. He applied for at least 50 jobs between January 2019 and June 2019. SUMMARY OF RESPONDENT ARGUMENTS: The Complainant was a Head Chef in the catering facility of a large client. He had overall responsibility for the management of the kitchen, including compliance with health and safety regulations. In September 2018, an internal audit failed with 8 major non-conformances, for some of which the Complainant was responsible. An investigation, which took account of the Complainant’s views, concluded that the matter should be dealt with under the relevant disciplinary process. The disciplinary process was paused to deal with a grievance from the Complainant in relation to the alleged failure of his Unit Manager to manage/assist with allergen recording. The grievance was partially upheld. The outcome noted that the Unit Manager had some accountability for allergens but that ultimate responsibility rested with the Head Chef. The outcome also accepted the inaccuracy of an allegation against the Complainant and it was confirmed that this allegation would form no part of a disciplinary process. The outcome of the disciplinary process was that the Complainant was issued with a final written warning for the failure to follow correct protocols. The Complainant appealed this decision. Prior to an appeal hearing, the Complainant served notice of his resignation. He cited as his reasons; alleged harassment from senior management, objections to the person conducting the appeal, the fact that he was not re-trained on allergen protocols after the audit and the fact that he alleged another Chef had reported issues after the audit for disciplinary purposes. The Respondent asked him to re-consider his resignation. The Respondent agreed to replace the person assigned to hear the appeal. Another person was assigned to deal with the concerns raised, in line with the Grievance Procedure. The disciplinary appeal reduced the penalty to a first level written warning. The Complainant declined to attend a number of offered meetings regarding his grievances but he did attend in February, at which meeting he made clear that the only resolution sought by him was payment of compensation. He lodged his complaint with the WRC the next day. Although the Complainant had indicated that he would not be returning to work, the Respondent completed the grievance process and it was found that the grievances could not be upheld as many allegations were unsubstantiated or had been resolved following the resignation of the Unit Manager in November 2018. In applying the two tests to establish constructive dismissal, it is clear that there was no breach of the Complainant’s contract in the terms set out in Conway v. Ulster Bank, UD474/1981. With regard to the test of ‘reasonableness’ the Complainant has to show that the employer acted so unreasonably to render the relationship intolerable and that he acted reasonably in resigning. This high bar of requirements was set out in McCormack v. Dunnes Stores, UD 1421/2008. The Respondent in this case acted fairly and reasonably throughout. The Complainant was afforded every opportunity to be heard under the various procedures. The Respondent has a comprehensive Grievance Procedure, which the Complainant did not exhaust prior to his resignation, see Travers v. MBNA Ireland Ltd., UD720/2006. In Fitzsimons v. Mount Carmel Hospital, UD855/2007, the Employment Appeals Tribunal noted that the Tribunal’s primary function was to ‘ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures…’ In this case, the Respondent urged the Complainant to re-consider his resignation to allow them to investigate his concerns. He resigned before putting the Respondent on notice of his issues. Even then, the Respondent conducted a full and fair process but the Complainant was interested only in compensation for issues which he had not allowed the Respondent to investigate at that point. The minutes of the various meetings do not show that the Complainant raised the question of re-training in the course of the Grievance Procedure. WITNESS EVIDENCE: Mr. Mickael Jego: Mr. Jego is the Complainant. The witness confirmed the truth of the contents of his submissions. Under cross examination, the witness accepted that he had not provided any evidence to support his claim that he had applied for jobs every day between January and June 2019 but said that he was willing to do so, if required. The witness said that even though the penalty had been reduced, he did not feel safe as he had constantly sought re-training that had not been provided. When it was put to the witness that there were no references to re-training in his meetings under the Grievance Procedure, he said that he did not accept the validity of any of the minutes of the later meetings and noted that, unlike the minutes of earlier meetings, he had not signed the minutes of meetings. He insisted that he had raised the matter constantly. In response to questions from the Court, the witness said that he was on Jobseekers’ Benefit from January to June 2019 at which time he secured a new job at considerably reduced pay of €42,500 p.a. but he was happy in that new job. He outlined that due to the pandemic, his new employer closed from March to Summer 2020, when he was on Pandemic Unemployment Payment. The premises had closed and re-opened before Xmas 2020, since when he had been employed as the premises did take-away food. When it was put to the witness that the reduction in the penalty should have made him happy enough to return to work, the witness said that he could not as the everyday work had not changed. THE APPLICABLE LAW: Unfair Dismissals Act 1977. 1. .“dismissal”, in relation to an employee, means— (a) …………… (b) 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, Redress for unfair dismissal. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, DELIBERATION: There are two tests for constructive dismissal, (seeWestern Excavating (ECC) Ltd. v. Sharp (1978), IRLR27). The ‘contract test’ requires the Court to establish that an employer breached the terms of an employee’s contract and that, as a consequence, the employee was entitled to resign. It is not necessary for the Court to examine this test in detail in respect of the instant case as no breach of contract was alleged nor is there anything in the facts of the case to suggest that any such breach occurred. Any issues regarding trust and confidence, implied terms of any contract, (as perBerber v. Dunnes Stores, (2009) ELR61)overlap to some extent with the test of reasonableness because, as noted in that case by the Supreme Court, the conduct of the employer must be unreasonable, thus destroying trust and confidence, and it must be judged to determine if an employee could not be expected to put up with it. The second test is that of ‘reasonableness’. In the instant case, the Complainant argues that it was reasonable for him to resign as he was concerned that the Respondent’s actions placed him in jeopardy of possible prosecution. In a case of constructive dismissal, the burden of proof is on the Complainant. Therefore, the requirement of him on the facts of the case is to show that the Respondent behaved unreasonably to the extent that it was reasonable for him to resign his employment. To meet this requirement, the Complainant must show, as perConway v. Ulster Bank UD474/1981,that he utilised the available procedures to attempt to remedy his complaints. In this regard, it is difficult for the Court to overlook the fact that the Complainant resigned prior to the conclusion of his appeal under the Respondent’s Disciplinary Procedure. Furthermore, concerns raised previously regarding a Unit Manager were no longer relevant as there was a new Unit Manager. In addition, concerns raised by him in his notice of resignation were treated as grievances and were investigated fully even after he had left. The Court notes also that the Respondent sought to have the Complainant re-consider his decision to resign. None of these facts suggest a level of unreasonableness on the part of the Respondent such that it might be said that a reasonable person was left with no choice but to resign. There is no doubt that the Complainant was upset about the audit, that he felt wronged and that the entire situation was stressful for him. However, it is not unreasonable for a company in that business to conduct internal audits and they can be expected, indeed they are required, having identified shortcomings to act upon them. The Complainant felt that too much blame was being placed on him for these perceived shortcomings and his use of the Grievance Procedure partially vindicated this view. Again, this does not suggest a level of unreasonableness that would leave him with no choice but to resign. There was conflicting evidence regarding the extent to which the Complainant sought re-training subsequent to the audit. The minutes of various meetings do not bear out his emphasis on this. That said, the Court does not doubt his strength of feeling on the matter. The problem would appear to be, as the Complainant partially acknowledged, that he may not always have made himself sufficiently clear. If so, the Court cannot hold that the Respondent was unreasonable in its actions on the matter. It follows, therefore, having regard to the circumstances, for the reasons set out, the Court cannot determine that it was reasonable for the Complainant to resign and, as a result, the Court cannot uphold the complaint of constructive dismissal. Determination. The Decision of the Adjudication Officer is upheld.
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