Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Lisa O'Brien, McMahon O'Brien Tynan Solicitors

David Gaffney , Gaffney 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-00027540-010

04/04/2018

The Complainant alleged he had to leave his employment due to the actions of the Respondent and was constructively dismissed. It was common case between the parties that the Complainant was employed by the Respondent from the 14th April 2017 to the 11th October 2018. It is also common case between the parties that the Complainant resigned from his employment on the 4th October 2018 via email. The Respondent denied the complaint. The Parties exchanged further information after the Hearing.

The Complainants main case revolved around a series of six incidents/issues which occurred between July 2017 and August 2018. His submission detailed that he was subjected to aggressive behaviours by the Head Chef in July 2017 when he stated the Head Chef demanded the area he worked in to be cleaned up, that the Head Chef was aggressive and irate towards him and that he threw things in the Pastry section. He stated there were three other employees present but that he was the only one targeted in that incident. He alleged this was verbal abuse, threating behaviour and mistreatment.

In December 2017 the Complainant alleged during a disagreement in the Pastry section with another colleague that the Head Chef approached them shouted at him that it was his fault. He alleged this was abuse.

In May 2018 the Complainant stated he burned his wrist and it needed two weeks off work to recover but he was told by the Head Chef and Sous Chef he should not be absent for more than a week. The Complainant returned to work after a week even though he was not fully recovered.

In June 2018 the Complainant requested holidays for medical and personal reasons in October that year but was told he had no holidays left and the Complainant stated he would be allocated holidays without asking for them.  Also, that month the Head Chef was going on holidays and told the Complainant not to clock in or out because he had signed his time sheet manually in advance as he said” I don’t want you to get paid more than you should”. He alleged this was mistreatment.

On July 7th, 2018 the Complainant stated the Head Chef accused him of taking 3 or 4 cigarette breaks when he only had taken 2. He alleged this was mistreatment.

On July 23rd the Complainant sent a letter of Complaint to the HR Manager but due to holidays this was not seen by her until August 8th.

On August 6th the Complainant spoke to the Food and Beverages Manager about not getting his breaks that day and was told go to his Manager directly about the issue. The Complainant stated that the Food and Beverage Manager became very irate and shouted at him and if the Complainant became all technical about things he would make his life miserable. He alleged this was verbal abuse and mistreatment.

On August 7th the Complainant was told by a colleague that she overheard the HR Manager and the General Manager discussing the Complainants complaint.

The Complainant was invited on the 7th of August to a meeting on the 8th of August to discuss his issues. The HR Manager closed the door of her office and said before she discussed the issue with anyone she wanted to discuss the issue with the Complainant first. The Complainant alleged that on looking back at the meeting the HR Manager blatantly lied to him without any respect for his hard work and dedication.

On the 9th of August the Complainant noticed certain Managers were behaving differently towards him and that word about his letter of complaint had spread around the Hotel. Also, on that day the Head Pastry Chef asked the Complainant to bring his contract to work and the contract clearly stated it should not be shown to colleagues. The Complainant refused to provide his contract until HR could provide it in the next few days. The Head Pastry Chef and the Head Chef then demanded the Complainant meet them in the Head Chefs office and the Complainant would not attend this meeting without written notice of the issues to be discussed. The Complainant stated the Head Chef became very irate and aggressive and came in to his personal space and was very intimidating. The Complainant was then approached about the issues by the General Manager while he was having a cigarette break in the Loading Bay and the Complainant stated he requested they discuss the issues in her office. He alleged the General Managers response was very un-professional and intimidating.

The Complainant sought medical treatment for physical and psychological issues as he felt overwhelmed by the whole situation and was physically drained. The Complainant was medically certified unfit from September 13th to the 20th for stress. On the day the Complainant was due to return to work he found out that his brother had passed away and he returned to Croatia on September 22nd and returned to Ireland on October 4th. On the day he returned to the Hotel he handed in his resignation.

The Complainant alleged that the cumulation of all these incidents meant he had to leave his employment due to the verbal abuse, threatening behaviour and mistreatment actions of his Employers management towards him and he was constructively dismissed as a result.

The Respondent denied that the Complaint had grounds for constructive dismissal and the burden of proof laid with the Complainant to justify such a claim.

It was submitted that the Complainant failed to fully exhaust all internal Grievance procedures prior to resigning. The Complainant refused to reconsider his decision to resign, despite being requested to do so by email dated 8th October 2018. It was submitted that in refusing to exhaust the internal Grievance procedure that exists to address matters of concern to an employee, should they arise during the course of their employment, then such refusal prohibits the Complainant from pursuing a claim for compensation by reason of constructive dismissal. In this regard, it is submitted that a failure and/or refusal to exhaust the internal Grievance Procedure is fatal to a claim for constructive dismissal.

It was further submitted that the Complainant's decision to resign was not wholly or entirely related to work-related matters and that the Complainant had unfortunately suffered the tragic loss of his brother immediately prior to making the decision to resign. In this regard, the Adjudicator is referred to the Complainant's Statement which clearly states, inter alia, that 'that the whole hotel would know about my brother 's passing and I knew it would be impossible for me to deal with my brother 's passing....and I decided to hand in my resignation. " This statement unequivocally shows that the decision to resign was not entirely made because of work-related matters, but was considerably, if not entirely, a decision made following a tragic personal loss.

Moreover, it was submitted that if an employee was capable of working their notice period, then the very notion of constructive dismissal cannot apply to the situation as it is an inherent contradiction.

The Background

The Complainant was employed from the 14th of April 2017 to the 4th of October 2018 as a Chef de Partie. The Complainant gave in his notice by email and letter on October 4th, 2018 and his employment ended on October 11th, 2018. Prior to this period of employment, the Complainant had previously worked for the Respondent and voluntarily left the employment. Therefore, it is logical to assume that both the Complainant wished to return to the employment and the Respondent had no issues with re-employing him.

At the Hearing the Complainant was asked by his Representative to take the Hearing through all the details of each incident. The Complainant was cross examined in detail on his evidence by the Respondent Representative.

While the Complainant informed the Hearing about many issues when asked by the Adjudicator what his core reasons were for leaving the employment he summarised them as follows;

                                           The Head Chefs attitude

Receiving texts before work about what had to be done that day thus invading his personal time

            The change of atmosphere after August 8th when he made his complaint and

                            The cumulation of all the behaviour he had to deal with

The Law

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the Complainant. He must show that her resignation was not voluntary. Section (1b)  of the Unfair Dismissals Act 1977 states “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”.

Section 6(1) of the Act states “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where conduct of the employer amounts to a repudiatory breach of the contract of employment an employee could be entitled to regard themselves as having been dismissed. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held by the Employment Appeals Tribunal that, to meet this test “an employer must be 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 as discharged from any further performance”

Alternatively, a line of authorities has established a Reasonableness Test which may be relied upon as either an alternative to the contract test or in combination with that test to substantiate a complaint of unfair dismissal. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. In particular, the authorities make clear that an employee must seek to utilise the available grievance procedures in the employment before terminating their employment or else demonstrate why such a course of action would not have been reasonable or practicable. In Beatty v Bayside Supermarkets UD 142/1987 for example, the Employment Appeals Tribunal held:-“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

It is important in a constructive dismissal claim that the Complainant satisfy the test set out by Lord Denning in Western Excavation (E.C.C) Ltd in that the Complainant, must also show that they exhausted the internal grievance process prior to lodging their claim with any external body. In that regard the case of Conway V Ulster Bank Limited UD 474/1981 is relevant where the EAT stated:-“In writing the letter of resignation, the appellant did not take the steps outlined in the grievance procedure. The Tribunal has long considered that such agreements, usually described as Union Management agreements, are binding on the parties because they chose to be bound by them”.

If the Adjudicator is not satisfied that the “Contract” test has been proven, then I am obliged to consider the “Reasonableness” Test; “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”. When assessing the Reasonableness Test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the Complainant to terminate their contract of employment.  

Issues Arising

In assessing the merits of this complaint, the following main issues arise for consideration;

A; The Complainants core reasons for claiming he was constructively dismissed

The Complainant raised the behavior and attitude of the Head Chef as one of his core reasons for leaving.  With regard to the incident on July 7th the Complainant stated he had no collaborating witnesses to the Head Chefs actions, the Complainants recollection of events were “fuzzy” in that he could not  remember whether it was a weighing scale or radio the Head Chef allegedly through on the ground and could not name the three people who he maintained were present at the time  of the incident. The Complainant also admitted, on cross examination, that his cigarette breaks were on company time and therefore this had a relevance to him being questioned about the number of cigarette breaks he took. The Complainant also decided to return to work after his wrist incident after a week and there was no collaborating evidence to support his claim that if he took two weeks off he would lose his job, as he alleged. Regarding the issues of holidays being given to him without his consent, on cross examination the Complainant admitted that the holidays were posted in advance on the Roster. The Complainant did not adequately explain why he did not know how many days holidays he had taken at any one time and in the Adjudicator’s experience most employees have a very accurate record of holidays taken and left to take. This is relevant in that the Complainant stated he gave four months advance notice of his intention to go to Croatia for personal reasons and was told he had no holidays left for that time off and his scheduling of holidays without consent was mistreatment. The Complainant also accepted it is the right of Management to schedule holidays.  Other than the October holiday issue the Complainant gave no other examples of when holiday requests were denied. However, at the Hearing the Complainant did agree that the Respondent were willing to facilitate him for the time off which he had hoped to take in October. The Complainant also admitted under cross examination that he sometimes did not clock in or out and therefore when the Head Chef was going on his own holidays the Head Chef was justified in setting out the Complainants start and finish times in his absence. So, in summary a lot of the work-related issues the Complainant alleges contributed to his feeling of being mistreated either did not have merit, proof or collaborating witnesses. The Complainant also had an issue with his Manager not giving him notice of inspection visits of the Kitchen. This was not a legitimate complaint as a Head Chef/Manager is entitled to conduct cleanliness inspections at their discretion. That leaves the issue of what the Complainant stated in his resignation letter that he had been “subject to verbal abuse, threating behavior and mistreatment” and he could “no longer bare the stress I am suffering in the workplace”.  It is impossible for a Person not present to verify or dispute what transpired between two people, in this case the Complainant and the Head Chef, except where there are collaborating witnesses and none were proffered in this case. The Respondent had a number of witnesses available for the Hearing including all the management which the Complainant alleged mistreated him, however the Respondent decided, as was their right, to not proffer any witnesses but to rely on work related justifications for their case, legal arguments and the Complainants own evidence under cross examination. The evidence submitted does not support the conclusion that the Complainant had grounds on which to justify his resignation.

The second issue the Complainant raised justifying his claim was the issue of receiving texts prior to him coming to work. However, this issue was never mentioned in any of his two letters of complaint to Management prior to his resignation and therefore its credibility and contribution to his case must be seriously questioned. In addition, on cross examination, the Complainant agreed that none of the tasks were not his duties and could be done with reasonable effort. Subsequent to the Hearing the Complainant submitted two texts relating to contact outside of Hours by his Supervisor. They were dated September 8th and 9th 2018. On examination of these texts the exchanges seem both normal and welcomed by the Complainant. In one case it was a request to make buns, scones and bread for dinner that day and for Sunday lunch preparation. It also set out the Complainants break times. The Complainant replies with queries and thanks his Manager. The Complainant then engages in questioning priorities and his duties and replies “Ok, now I get it”. The second text again queries recipes and duties/priorities. Therefore, this issue is insignificant and not one that can contribute to the Complainants case for constructive dismissal in that he openly engaged in the communication and it only happened twice. Some of the Texts from the Head Chef to the Complainant were very supportive with comments as follows from the Head Chef “I am so happy to help you if I can” and “if you think you need help we are all her to help you. Its all about team work”. This is not intimidating or intrusive behavior and primarily seemed to try assist the Complainant with details of recipes he was questioning.

The third issue the Complainant raised was the general attitude towards him changing after he submitted his complaint to HR on August 8th, 2018. The Respondent raised the issue of the Complainants Facebook message to all other Pastry staff on August 8th, 2018 and maintained that this message was the main reason why the attitude of staff and colleagues changed towards the Complainant and the Complainant bares the responsibility for this attitude change, if any. In the Complainants Post on Facebook to his work colleagues, which he only had a vague memory of but did not deny, the Complainant compared the work situation to a “kindergarten” and expected the answers he was getting from “eight-year old’s and not working professionals”. In what would appear to be a typographical error he states his Head of Pastry has not “once shown me disrespect” and “he is our Boss”. He continued that people who question his skills “need to question their work and moral ethics”. He continued “if I hear or feel one more time the slightest disrespect from anyone in the pastry section I am going to immediately stop working and leave my work place and will not return until it resolved by my Manager.” A response from a named colleague stated, “We all value you in the pastry team, no one sees you any less”. However, the Complainant included in his reply” There is no one in the Pastry section that can even come close to my Baker skills”.

 It would appear from the Hearing that the Complainant had not put his Representative on notice of this Facebook message. It also emerged from the Hearing that the Complainant did not work between September 11th and the date he handed in his notice, October 4th, 2018.  Both these issues significantly diminished the Complainants case that life became unbearable for him after August 8th due to him submitting a complaint and that the situation at work and the change in managements/colleague’s behavior towards him was solely due to him making a complaint to HR.

Finally, regarding the issue of the general management attitude towards the Complainant, when assessing a complaint, it is necessary to look at individual details but also the broad view. In this case the Complainant had conflicts with his Head of Pastry, the Head Chef, The Duty Manager, the Food and Beverage Manager, the HR Manager the General Manager and his colleagues. The Respondent Representative went to some lengths to point out that the common denominator in the conflict was the Complainant and he had some considerable responsibility to bare for any conflicts. In certain situations, for example when the Complainant refused to meet with his Manager in his office he felt he was justified in refusing to do so yet insisted on meeting the General Manager only in her Office when approached by the General Manager to discuss his issues.  This is a view I must concur with in that it is highly unlikely, if not impossible, that all of the above Management were conflictual in nature for a Hotel of such a high business reputation and no significant justifications of a reasonable nature were put forward to sustain this general view by the Complainant and he must share some, or most of, the responsibility for any conflicts that did arise.  

B; The use of the Company Grievance procedure

It is well established in law (outlined above) that the general rule is that a Complainant must exhaust the internal grievance process prior to lodging a claim with any external body. On occasion, and in very limited circumstances, when a Complainant can prove, by the production of evidence, that the invoking of a grievance process would be a fruitless exercise the general rule can be displaced. The Respondent has an informal stage and formal stages in its written Grievance Procedure in the Company handbook.  The Respondent in its submission maintained the Complainant had not initiated the Grievance procedure. The Complainant wrote a Letter of Complaint on July 23rd, 2017 to the HR Manager. This invoked the Informal Grievance Procedure as the complaint was not addressed to the Complainants Line Manager as required by the Grievance Procedure. As is good practice, the issues raised were attempted to be resolved informally at the meeting, organized by the HR Manager, on September 10th with all relevant parties present. If the Complainant was not satisfied with this outcome, in accordance with the Grievance Procedure, he then had to commence the Formal Grievance Procedure “Failing settlement informally, the matter should be lodged in writing to your manager/supervisor. The Complainant never did this and therefore failed to initiate the Formal Grievance Procedure.

C; The Complainants letter of Resignation and period of notice given

The Complainant handed in his notice on October 4th, 2018 and he gave one weeks’ notice of his intention to leave the employment. In general, for a constructive dismissal claim to proceed the circumstances must be as describe in Section 1 (b) of the Act “ 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 “. The Complainant choose to stay on for a week after giving in his notice, therefore the Adjudicator must question if the circumstances met the above test. The Complainant justified staying on for the week as 80% of his colleagues had attended a farewell party for him when he left the employment previously and he did not want to let them down. But in his letter of resignation he stated I “apologize for the inconvenience my registration will cause” and “I appreciate all the valuable experience I have gained while working at the Hotel” and “I wish the Company continued success and thank you for your understanding and patience with me during this time”. This letter of resignation, while it does mention he was subject “to verbal abuse, threating behavior and mistreatment” it not a letter a person who has been subjected to justifiable reasons for constructive dismissal would normally write in that they would be fewer positive statements about the Company normally and much more detail about their reasons for leaving. Also, critically, in between the time the Complainant gave in his notice and his last working day, the Respondent wrote to the Complainant on October 8th, 2018 stating” We would like to give you the opportunity to reconsider your resignation and give you and (the Head Chef) the opportunity to move forward”. This shows the Respondent held no ill feelings towards the Complainant and wished to resolve the matter.  The Complainant declined to take up this offer. In addition, and more importantly, the Complainant stated he wanted to work his notice because of concern for his colleague’s workload that week. However, his Facebook comments covered earlier in this Decision, showed the Complainant had little, if any, regard for his colleagues by stating he would walk out immediately if he was not shown respect and stay out until the matter was resolved. These statements are totally inconsistent and go to the credibility of the Complainants version of events.  

D; The Notes of the Meeting with the Complainant and HR regarding his complaints

The Complainant alleged that the Notes of the Meeting on September 10th were not accurate Minutes of the Meeting and did not include a lot of his observations. This is somewhat true, but these Notes were never described as Minutes of the Meeting but were more the outcomes of the Meeting and the Complainants response to the question put to him by the HR Manager “Can we move on from this and put to bed” at the conclusion of the Meeting was “No” and this is recorded in the Notes. The Complainant was then advised the complaint would be escalated to the Hotel Group Manager and this is recorded in the Notes of the Meeting. Under cross examination the Complainant stated he vaguely remembered these notes and did not have them with him for the Hearing.

E; The second letter of complaint and Facebook comments

The Complainant submitted a second letter of Complaint to the HR Manager on August 13th, 2018 in which he states” I really felt positive that all my issues we discussed were going to be resolved or, so I thought. However, the whole situation has in my opinion escalated to a level that I could not imagine in my worst nightmare. I will describe the last few days of what has been happening” and the Complainant went on to outline a number of further complaints. This letter confirms in the Complainants view that the issue he raised in his complaint on July 23rd were being addressed by Management but that things had changed since August 8th. The differing reasons for this change appear more related to the Complaints post on Facebook on August 8th that anything else. I conclude that this Facebook message by the Complainant to all the other staff in his Section resulted in the change of atmosphere he describes and not any actions by Line Management. As the first letter of Complaint was still being addressed by the Respondent and given the Complainants absence from work after he submitted his second complaint it is reasonable that the issues raised in the second complaint had not been advanced when the Complainant resigned.

F; The Complainants unfortunate personal family tragedy

It is a sad fact that the Complainants brother passed away at the time the Complainant was due to return to work on September 20th, 2018.  He then travelled to Croatia until October 4th, 2018. While all parties were understanding and compassionate towards the Complainants loss it was on his immediate return to work after the passing away of his brother that the Complainant resigned that day. The Respondent, sympathetically, argued that this loss may have had a bearing on the Complainants decision to leave his employment and that the Complainants decision was not just solely due to the alleged actions of the Respondent. Some measured discussion took place that if the death of the Complainants brother had not taken place would the Complainant have resigned. Unfortunately, this was a speculative argument but there is no doubt that the tragic loss of the Complainants brother and his visit home may have contributed to his decision to resign.

G; The attitude of the Complainant

At the Hearing the Complainant stated that his attitude to things had changed since the events of 2018 and he can cope with things better now. This is positive for the Complainants own personal attitude but has little relevance to the events under review by the Adjudicator except to say that the Complainant may not have been in a “good place” to deal with issues that arose at the time of his resignation.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The Adjudicator finds that the ‘Contract’ Test “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 as discharged from any further performance” has not been satisfied by the Complainant.

 In circumstances were the Contract Test has not been satisfied the Adjudicator must look at the ‘Reasonableness’ Test where “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”. The Adjudicator finds that it was not reasonable for the Complainant to terminate his contract of employment in circumstances where his complaints were still being investigated, that many of his recollections were not clear, that many of the issues he complained of were legitimate actions by the Respondent and did not have merit, proof or collaborating witnesses, that he did not invoke the formal Grievance Procedure, he had the right of appeal to the Informal grievance outcome, he stayed working for a week after resigning, he contributed to the atmosphere he complained of by his own Facebook message, that he was as much party to any conflicts with management as anyone else and that he never complained in his complaints to the Respondent of one his core reasons for leaving (receiving texts outside of work hours). He was also asked by the Respondent to rescind his resignation letter. I am in no doubt that the exchanges between the Complainant and some supervisory staff were tense and maybe at times, the Complainant felt the actions of his Supervision were unreasonable or that their behaviors were inappropriate. However, it is also clear that the Complainant contributed to these situations by his own attitude of defiance and as he said at the Hearing “fixing injustices” (or injustice as he perceived them). It was commendable of the Complainant to state at the Hearing that he has learned a lot since the time of his resignation and feels more able to deal with issues now. The Complainants tragic personal loss just prior to his decision to resign also probably contributed to his decision to resign and the Respondent gave the Complainant the opportunity to rescind this resignation, possibly due to his personal circumstances. The Adjudicator finds that the Respondent did not “conduct himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving “.

I find that the Complainant was not unfairly dismissed pursuant to the Unfair Dismissal Acts, 1977 to 2015.  

Constructive Dismissal