Complainant

Respondent

Anonymised Parties

A Chef Manager

A Catering Company

Representatives

  In person

 Denis O’Mahony, Solicitor, VP McMullan 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-00032793-001

06/12/2019

Complaint of constructive dismissal against an employer who, the Complainant alleges, failed to take disciplinary action against another employee.

The Complainant commenced his employment as a chef manager on 27 August 2018. His responsibility was to manage a large catering contract within a secondary school working alongside two catering assistants. At the time that he took the position the contract had been a poorly performing one for the Respondent and it was part of the Complainant’s role to improve the performance of the contract, which he was successful in doing.

One of the catering assistants (hereinafter referred to as A) was uncooperative with the Complainant from the start of his employment. Despite numerous attempts by him she refused to change her poor work practices or to follow reasonable instructions. She was a long-time serving employee at the school and she resented any change to the manner that she performed her job. This problem became worse over the duration of the Complainant’s employment and her failings became manifest within the job. She was late for work, she breached health and safety and HACCP policies, she actively undermined the Complainant’s management directions and from September 2019 onwards she openly demonstrated a resentment about the fact that the Complainant’s partner had been employed by the Respondent. In essence she refused to work with her. This poor attitude and problematic work performance accelerated from then on and she became impossible to work with.

The Complainant kept the managing director and office manager of the Respondent company informed of these ongoing problems from September 2018 onwards through telephone communication and handwritten notes.

On 11 October 2019, the Complainant wrote an email to the managing director in which he tendered his resignation, unless A was either dismissed or transferred. This, he explained, was due to the impossible conditions within which the Complainant found himself. Following receipt of this email the managing director of the Respondent met him and his partner on 29 October 2019. He was told by the managing director that company disciplinary policies needed to be followed and that a meeting with A would be arranged. He informed the Complainant that if the problematic issues were documented by him, then disciplinary action against A could be brought.

A meeting was arranged for the 8 November 2019 at the school at which the Complainant, A and the managing director attended. Prior to the meeting the Complainant had identified 14 work performance issues that needed to be addressed by A. At the meeting the managing director raised each of these issues with A and explained that her conduct was required to change otherwise disciplinary proceedings could issue. Minutes of this meeting were signed by the parties present.

Following this meeting, a further incident occurred on 21 November 2019 when the Complainant discovered in the kitchen, an electric deep fat fryer containing boiling oil, which had been left on. This constituted a serious fire hazard and the Complainant believed that this error had been made by A. The complainant contacted the managing director who requested the Complainant to raise it with A and to record her response and to send it to him.  This, the Complainant did, by email dated 22 November 2019. A denied any involvement with the fryer and in his email the Complainant re-iterated his warning to the managing director that unless A was removed from her position, because there was a serious safety risk for which he, as her line manager, would be held responsible, he could not tolerate it. The constant awareness of the safety hazards being created by A especially given that the business operated within a school building, where children were at risk, had become too intolerable for the Complainant to bear.

Matters came to a head the following Tuesday on 26 November 2019 when a large event was due to take place in the school, at which 85 guests were catered for. Following an argument between A and the Complainant’s partner, A walked off the job. This resulted in the event being short staffed and casual catering staff, who were unfamiliar with the kitchen and the dining area, having to host an event without an experienced staff member being present.

This event was the tipping point for the Complainant. He telephoned the manging director, who informed him that while he was in the vicinity of the school, due to illness was unable to stop. The managing director told him, via text, to document exactly what had happened.

After this the Complainant became disillusioned with what he perceived as lack of support from management and at that point he lost any faith that A would ever be removed. He wrote an email to the managing director the following day, 28 November 2019, and informed him that unless A was removed from her post by the following day (29 November) that he would tender his resignation, which was what occurred.

In the Complainant’s view, he had no option other than to leave his employment. He did not believe that he could continue with A working alongside him, a person that he regarded was a liability, from a health and safety point of view but also impossible to manage and a person who undermined his management authority whenever she could.

The reason the Complainant left was inaction on the part of management to adequately deal with A.

The Respondent denies that it was on notice of the difficulties that the Complainant was having with A. The managing director gave evidence that the first notification that he received was by email from the Complainant dated 11 October 2019.

His evidence was that at the meeting on 29 October 2019 he explained to the Complainant that it was not possible to simply dismiss A and that disciplinary policies would be required to be followed. This would require evidence to which the Complainant would be entiled to be on notice of and be entitled to respond.  

From that point onwards, the managing director was aware of the interpersonal difficulties as well as the view of the Complainant that A presented a health and safety risk.

He followed up this meeting, as the Complainant had been advised, with a meeting with A and the Complainant on 8 November 2019 at the school. At this meeting considerable detail was provided to A as to the issues that she needed to address, as otherwise, she was warned, she would face disciplinary action

The Respondent refutes the assertion that he was ignoring the problem or that he was not responding to the Complainant’s concerns. However, it was not realistic to believe that A could be dismissed without process being followed and this was naïve of the Complainant to suggest.

The Respondent contends that the dismissal of an employee is a decision of management. It was not a decision of the Complainant. While the Complainant’s desire for her dismissal was expressed in October 2019, the Respondent was not prepared to give effect to this because regardless of what the Complainant had reported to him the Company owed a duty to all its employees, including A, to follow the company disciplinary policies. What was suggested by the Complainant would have breached company disciplinary policy and would have offended A’s right to remedy the criticism of her work.

Following the incident on 21 November 2019 when A walked off the job, once informed of what had occurred, the managing director knew that an investigation would now be required to take place. The suggestion of a summary dismissal would not and could not take place without an investigation occurring. No finding of gross misconduct could be made in the absence of the evidence of A being heard. A dismissal to be affected within 24 hours, as was suggested by the Complainant, was not an option that the managing director could have or would have agreed with.

The Complainant left his employment. He was not dismissed and the conditions that he expressed as being the only basis upon which he was prepared to continue his employment were not reasonable and if it had been followed would have exposed the Respondent to a risk of litigation.

There were alternative remedies available to the Complainant prior to his resignation. The Complainant should have used the grievance procedure that was available to him prior to resigning and the failure to do so, is fatal to the success of his complaint.

The statutory provisions and leading authorities on constructive dismissal cases are that the decision by an employee to leave his employment must be a reasonable one (see section 2 1977 Unfair Dismissals Act) and, in general, the employer’s grievance policy must be exhausted (Conway v Ulster Bank UD 474/81)

I fully accept that the Complainant had reached the end of his tether with the conduct of A and that he felt that his employment could not continue. I accept that he had a right to leave his employment, as he did. However, it does not follow that the Complainant’s decision is one that automatically attaches as being the responsibility of his employer.

For constructive dismissal cases to succeed,  firstly the onus is on the Complainant to prove that the Respondent was put on notice of his previous complaints about A. Secondly the Complainant must prove that the Respondent acted unreasonably.

The first documentary evidence which proves that the Respondent was put on notice of (a) the problem and (b) the acuteness of the problem from the Complainant’s point of view, was the Complainant’s email of 11 October 2019. Thereafter a meeting with the Complainant took place (29 October 2019) and a meeting with A took place (8 November 2019) at which she was advised that she was being required to either change her work practices or face disciplinary action. These actions were to meet the concerns that had been raised by the Complainant and the meeting on 8 November and was the first necessary step in what thereafter might have become disciplinary action against A.

The Complainant resigned on 29 November 2019. The reason he resigned was because he believed that the Respondent should either dismiss the Complainant or transfer her and following the incidents on 21 November and on 26 November 2019, in his opinion A was guilty of gross misconduct.

However, the managing director of the Respondent was quite correct in how he dealt with the situation. He owed a duty of care to A to process any complaint against her in accordance with fair procedures and in accordance with the company disciplinary policy, as he owed a duty to all of his employees.  It was not for the Complainant to decide that her conduct amounted to gross misconduct, such a finding could only have been made following a proper and fair investigation into the events which would necessarily take time to conduct.  The Complainant may have argued that the allegations against her were fictitious, she might have said they were exaggerated, if she accepts that the fire hazard event had occurred, she might have denied any involvement in this. These were all possible and yet the view of the Complainant was that she should be summarily dismissed and no opportunity to hear her version should be afforded to her.

It goes without saying that a finding based on the evidence of the Complainant alone without providing A with an opportunity to be heard, would have been a legally fragile decision and it also would have been wrong.

It is inaccurate to say that the Respondent did not respond to the Complainant’s concerns. The disciplinary process of A started at the meeting on 8 November 2019. It could have continued if the Complainant had not left his employment. The building of the evidence upon which an investigation into A’s conduct might be brought, was upon on him to gather. This was explained to the Complainant. An investigation process, if such evidence had become available (and it would be wrong for that to have been pre-judged) would have taken time. Evidence, as it happened, did become available, because of the incidents on 21 and 26 November. However, following the 26 November incident, the Complainant decided that he could not accept the working conditions any longer, at which point his engagement with the disciplinary process against A (by gathering evidence for an investigation against her) came to an end when he left the job.

I am not satisfied that the Complainant was unfairly dismissed, by virtue of the circumstances that he found himself on the days following the 26 November 2019. I do accept that he found himself unable to continue in his position as chef manager and that he decided to leave his job, but I do not accept that the responsibility for this decision lay with the Respondent.

Insufficient time was permitted to allow the Respondent to continue its disciplinary process of A and if a grievance application had been pursued, this might have been explained to the Complainant.

I fully accept that the Complainant was a highly performing employee who took his work and the business of the Respondent very seriously. I accept too that he attempted, in what he found to be very trying circumstances, to manage his role as A’s line manager. I also believe that the Complainant left his job in circumstances where he was not familiar with the legal obligations that an employer has, to conduct a disciplinary process fairly and to ensure that disciplinary sanction may only follow a consideration of all the evidence of those involved in an alleged incident or incidents of alleged gross misconduct.

Consequently I find that there was no basis upon which the Respondent was obliged to meet the conditions that the Complainant set out in his email of 28 November 2019, namely that A be dismissed or transferred the following day.

Consequently, I do not find this complaint to be well founded.

For reasons set out above I do not find this complaint to be well founded.

Constructive Dismissal