Complainant

Respondent

Parties

Kevin  Mooney

Ballyroe Heights Hotel Limited

Representatives

Cashell Solicitors. Ms Aoife Lynch, B.L.

 The Hr Suite..

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041781-001

04/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041781-002

04/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041781-003

04/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041782-001

04/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041782-002

04/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041782-003

04/01/2021

The complainant has presented three complaints under the Organisation of Working Time Act, 1997, and one complaint under the Unfair Dismissals Act, 1977.

The complainant was employed as a sous chef with the respondent from 28 September 2018 until his dismissal on 29 September 2020.

His gross weekly salary was €1071.00, net €831. He worked 63 hours a week.

He submitted his complaints to the WRC on 4/1/2021.

CA-00041781-001. Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant took an affirmation.

The complainant’s direct evidence.

Breach of section 11 of the Act.

The complainant did not get a daily rest period. He frequently worked from 10 am in the morning until 11 at night. The complainant referred to copies of rosters submitted to the hearing for the period 5 July -23 August 2020 which demonstrate that on the 11 and 12 July and on the 6 and 7 of August, he was denied the statutory rest period of no less than eleven hours in contravention of section 11 of the Act.

The head chef designed the roster. It was not within the complainant’s remit to create the roster as alleged by the respondent. The kitchen had three qualified chefs and 2 trainee commis chefs. While the roster may have originally stated a start time of 11am and a finishing time of 9.30 pm,  providing  in this way rest periods in compliance with section 11 of the Act, they were changed on foot of requests to him from the deputy manager and the head chef to come in at the earlier time of 9am to prepare for the days’ meals, source ingredients etc.

Cross examination of the complainant

The respondent’s representative put the specifics of the alleged breach of section 11 of the Act of 1997 to the complainant.  In relation to the alleged absence of a rest period between the 11 and 12 July, the complainant’s roster stated a finishing time of 9.30 pm on the 11 July and a start time of 11am on the 12 July. The complainant responded that he had come in at 9.30 am on the 12 July having worked until 11pm the previous evening of the 11 July. In reply to a question he stated that he cannot say who if anyone instructed him to come in at 9. 30am on the 12 July. He stated that he may have used his own initiative as that is how he works. He stated he may have had to come in early because work needed to be done. He is not sure if the head chef had left at that stage.

His roster for the 6- 7 August had a start time of 12md as opposed to the complainant’s claim that he started at 8.30. The complainant stated in response that he could not recall who had asked him to come in at the earlier time. The complainant submitted time sheets showing he had worked these hours.

CA-00041781-002. Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant worked excessive hours with opportunity to take a break as it was too busy. There were no scheduled break times nor any system in place for breaks.

On the rare occasions when he did take a break, it was of 10 and never of thirty minutes duration. All other support staff in the kitchen got their designated, undisturbed breaks. The complainant raised the matter with the deputy manager. He could not remember the dates on which he raised the matter. It was never resolved. The other chefs did not receive their breaks.

The complainant also alleges a breach of section 15 of the Act in that he frequently worked in excess of the statutory weekly limit of 48 hours.

He submitted copies of amended rosters to the hearing demonstrating that for the 9 weeks from 5 July -23 August 2020, he worked on average 60 hours per week and in excess of the statutory limit of 48 hours.

Cross examination of the complainant.

While he was acting head chef from the 6 August 2020, he accepted that he had control over staff, but it was never put to him to take on responsibility for designating breaks for staff or himself. A manager or supervisor often asked him to perform tasks, preventing him from ever taking breaks. He cannot name them but states whoever was on duty would have made these requests to him. He was never instructed not to take a break. He did raise the matter with the head chef and the deputy manager, though he cannot recall on which dates.

The complainant accepted that he had responsibility with the head chef for the management and delegation of staff. He deputised for the head chef in his absence.

The complainant in reply to a question stated that oftentimes there was no lull in business between 2pm and 6pm, notwithstanding the fact that the hotel was situated 8 km outside of the town. He did not ask the chef from the other kitchen to come and relieve him for a break as that chef was too busy.

He accepted that he had a certain amount of control over his working hours.

CA-00041781-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The complainant had to leave his job on the 29/09/2020. due to the conduct of the respondent.

The respondent placed the complainant in a disciplinary process and suspended the complainant on 2 September following complaints received from a colleague about him throwing objects in the kitchen.  The conduct of the managing director during the disciplinary outcome meeting of 17 September led him to fear the worst. He started looking for other jobs. The complainant was given a final written warning on the 24 September.

He was suspended a second time on the 24 September for working with a competitor.

Direct evidence of the complainant.

He had enjoyed a good relationship with the managing director and colleagues until the disciplinary process commenced in September 2020. Following an incident with a colleague on the 20 August, the managing director suspended him on the 2 September 2020. A HR company was entrusted with investigating the four complaints received from colleagues. This took place took place on the 10 September. Two of the four complaints were upheld, one of which involved an unintentional, accidental injury to a colleague caused by throwing a plastic bowl at the colleague on the 30 August, and the second allegation, which was upheld, was that he fired an ice- cube at a fellow employee on the 21 August. In relation to the allegation that he threw an ice cube at a colleague, there was no written statement or CCTV footage verifying this incident.

The complainant accepts that the respondent was entitled to investigate the complaints made by colleagues about his behaviour and activate a disciplinary process but what alarmed him was that the disciplinary outcome meeting on the 17 September, conducted by the managing director, strayed way beyond the findings of the third-party investigation into the original complaints and put other, new, previously undisclosed colleagues’ complaints, which were not on the agenda, to him.  The complainant states that the managing director behaved in a very aggressive manner, shouting and screaming at him at the meeting on the 17 of September. The managing director went over the two allegations which had not been upheld by the external investigator at the preceding disciplinary investigative meeting held on 10 September. The managing director told him that he did not trust the complainant. He led the complainant to believe that his job was not secure. He told the complainant that he could shout at him all he liked. The managing director was going on what staff were saying about him and not on his work. The managing director said to him,” well what do you think, Kevin, coming back in here with all these issues hanging over us”. The complainant left that meeting very upset at the abuse levelled at him and unsure of his future. The complainant emailed the managing director the following day looking for the minutes and asked to set up another meeting. He received no response to this request. The managing director telephoned him on the 24 September to tell him that he was giving him a final written warning. He feared the worst. He believed that the manager had no confidence in him. He felt disrespected as a worker and as a person.

He was suspended for a second time on 24 September for working with a competitor during the period of his first suspension which had run from the 2 – 24 September.  Other employees for example, a barman, had worked with a competitor. Another chef worked in another hotel. He was unable to work with the respondent while the second investigation was underway.

He resigned on the 29th September 2020

Cross examination of the complainant.

The complainant confirmed that he knew the agenda for the disciplinary outcome meeting in advance of the meeting. The complainant stated that he did not activate the grievance procedure (appeals process) against the issue of the final written warning as by that stage he had lost all trust in the respondent.

He confirmed that he participated in a second investigative meeting on 28 September concerning his employment with a competitor during the period of suspension from 2 – 24 September. He requested minutes of that second meeting.  No finding ever came from the investigation of his working with a competitor as it was halted due to the complainant’s resignation. The complainant stated that by this stage, the meeting of the 17 September and the second suspension proved too much for him to handle. He accepted that both periods of suspension were paid.

To the proposition that his delayed resignation indicated that he was not resigning because of the behaviour of the managing director on the 17 September, but because he was attempting to secure alternative employment, the complainant replied that he was processing what had happened.

The complainant accepted that the managing director asked him to reconsider his resignation and explore other options such as the grievance procedure which would be conducted by an external party, or an attempt at an informal resolution with the managing director.

The complainant’s representative points to the legal tests of a breach of contract and/or unreasonable conduct which a complainant’s evidence must meet in order to succeed in a complaint of constructive dismissal and which were set out in Western Excavating (ECC) v Sharp (1978) ICR 221 and described as follows:

“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 discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

The complainant submits that respondent breached implied and express terms of his contract by failing to maintain a relationship of mutual trust and confidence. In addition, the respondent ignored the requirement to conduct the disciplinary procedure in a respectful and appropriate manner and in accordance with its terms, and that fair procedures and natural justice would be afforded to the complainant in the examination of the allegations.

In examining the respondent’s obligations under the “conduct test” the complainant relies on the decision of Berber v Dunnes Stores Limited (2009) IESC 10, which held that in order to satisfy this test, the conduct on which a complainant relies in his complaint of constructive dismissal must be  “ such that an employee cannot be expected to put up with it”

The respondent’s treatment of the complainant, the respondent’s breach of its own disciplinary procedures, relying on extraneous matters during the course of the disciplinary investigative meeting and the respondent’s words at this same meeting on the 17 September amount to conduct which the complainant cannot be expected to tolerate.

The respondent’s conduct amounted to a unilateral breach of the complainant’s contract of employment.

The complainant’s resignation was justified.

 Remedy

 The complainant identified compensation as the preferred remedy.

He took up employment on the 01/10/2020 as a chef de partie, having done a trial period the previous week, earning €15 an hour as opposed to the €17 he earned with the respondent.

The respondent managing director took the affirmation

CA-00041781-001. Complaint under section 27 of the Organisation of Working Time Act, 1997.

It is not the norm that chefs would be deprived of their daily rest periods.

The respondent addressed the specifics of the complaint that there had been a breach of section 11 of the Act of 1997.  In relation to the absence of a rest period between the 11 and 12 July, the complainant’s roster finished at 9.30 pm on the 11 July and commenced at 11am on the following day,12 July; hence his roster provided for the statutory rest period of 11 hours. His roster for the 6- 7 August has a start time of 12md as opposed to the complainant’s claim that he started at 8.30 and provided for the statutory rest period.

Witness 1. Direct evidence of the managing director.

The witness stated that normally kitchen staff were rostered so that they would receive their daily rest periods. The complainant chose to work the extra hours of his own volition. There is no requirement for a chef to be in the kitchen at 10am. He was paid for all extra hours worked.

The respondent is to provide the adjudicator with copies of the rosters.

CA-00041781-002. Complaint under section 27 of the Organisation of Working Time Act, 1997

Direct evidence of Witness 1

The witness stated he believes that the complainant did get undisturbed, 15-minute breaks because there was a lull between 2.30 – 6pm with only one waiter on during that period which is indicative of how slow business was at that time. He often observed the complainant having a break in the smoking area. The bar and restaurant were open from 12md – 9pm and were covered by two chefs, a third chef was engaged in another kitchen, and a helper came in at 3pm. The average number of tables served at lunchtime was 10-12; occasionally it might exceed that number. There were normally 10-20 covers between 12md to 5.30 pm after which the evening rush would commence. The hotel is situated 8 kilometres from the town, so random diners were few.

Neither the head chef or the deputy manager ever advised the witness of having received a complaint from the complainant about the absence of breaks. The first mention of the absence of breaks was when the complainant alerted him to this while engaged in the disciplinary process.The head chef did make provision for breaks.

Concerning an alleged breach of section 15 of the Act, the complainant’s representative stated that this has not been set out as a separate distinct complaint and should be inadmissible.

Cross examination.

The witness accepted that it was a busy kitchen, denied that they were short-staffed and confirmed that there were always 3 chefs on duty. The witness has no documentary evidence to prove that the complainant took breaks.

Hours in excess of the statutory weekly limit.

For the week ending the 12 July, the witness accepted that the complainant worked for 69.5 hours and he was paid for same. The context for this was that they had reopened post- Covid19  on the 29 June which involved a lot of reorganisation; they were hectic; it was a confusing time. All extra hours worked by the complainant were paid for.

The respondent will submit the complainant’s rosters.

CA-00041781-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

Direct evidence of the managing director.

The witness referred to the disciplinary outcome meeting of the 17 September cited by the complainant as the principal reason for his resignation. The witness accepts that this meeting of the 17 September became very heated.

Concerning the second suspension which resulted from the complainant working with a competitor, the complainant’s trial period with the competitor took place on the 19,20,21 September

The complainant did not give the respondent an opportunity to resolve the matter and refused the option of the grievance procedure or an informal resolution.

Cross examination of witness.

The managing director confirmed that he had a good working relationship with the complainant. He explained that the letter of suspension of the 2 September did not give a duration as he did not know how long the investigation would take. The managing director confirmed that he compiled the list of allegations which he outsourced to a HR company. The witness stated that the complainant had admitted to firing an ice cube across the kitchen. The witness accepted that the investigator found that there was no intention on the part of the complainant to harm any colleague.

 Concerning the addition of extra complaints to the agenda of the meeting of the 17 September, the witness stated that he wanted to address and dispose of all issues. He did not introduce any complaint or issue of which the complainant was unaware. To the statement that he did not allay the complainant’s fears of dismissal at the meeting of the 17 September, the witness refuted this and stated that the told the complainant that he would not be fired.

The witness accepted that he used improper language and that he had raised his voice at the meeting because he was passionate about his hotel and about meeting his responsibilities towards his staff. He accepts that the meeting was not the perfect meeting. The witness stated that if he did reopen complaints which had not been upheld, it was without malice. He gave the complainant an opportunity to respond to all matters.  He did not mean to disrespect anyone. He disagrees with the characterisation of his behaviour as hostile and aggressive. He shook hands with the complainant after the meeting.

The complainant did not try and resolve the issues when offered the opportunity to discuss them.

The respondent states that the complainant has failed to make out a complaint of constructive dismissal. The sanction of a final written warning issued on the 24 September was based only on the two complaints which the investigator had upheld in the investigative meeting of 10 September. The complainant did admit that he threw the ice cube to frighten staff.

The complainant did not appeal the sanction as provided for him in the disciplinary process. He did engage with the second investigation concerning his employment with a competitor.

The employer was denied the opportunity to remedy the matter. Resignation must be the last straw and only after the employee has tried to remedy the matter. This did not happen. He resigned .

The respondent asks the adjudicator to reject the complaint that he was constructively dismissed.

CA-00041781-001. Complaint under section 27 of the Organisation of Working Time Act, 1997

Alleged breach of section 11

Relevant Law.

Section 11 of the Organisation of Working time Act 1997 states that

“An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer”

The evidence before me was that the employer did not dispute that the complainant ‘s actual -as opposed to his rostered rest periods- fell short of the 11-hour statutory entitlement on two occasions. The respondent submitted rosters after the hearing showing that the complainant was rostered to allow for an 11-hour rest period. The complainant’s uncontested time sheets show that he came in at 9.30 am on the 12 July (of his own volition according to the respondent), having worked until 11pm the previous evening of the 11 July. The complainant’s time sheets show that he started work at 8.30 am on the 7 August, 2 .5 hours in advance of his rostered start time, having worked until 10 pm on the 6 August. The respondent while he queried the need for the extra hours worked by the complainant, did not dispute the amended time sheets, submitted by the complainant showing the actual hours worked. The respondent paid him for the extra hours.

While I accept that arrangements could have been chaotic after the re-opening of hotels on the 29 June 2020, and that the non-compliance with section 11 may have been a casualty of this time, the onus is on the employer to ensure that the terms of the Act of 1997 are compiled with. The complaint referral form was received by the WRC on 4/1/2021. The referable period is 5 July 2020.- 4 January 2021.

I find this complaint of a breach of section 11 of the Organisation of Working time Act 1997 to be well founded. I require the respondent to pay the complainant two weeks’ salary amounting to the sum of €2,140.

CA-00041781-002. Complaint under section 27 of the Organisation of Working Time Act, 1997

Relevant Law.

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows:

 “(1)       An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her to have a break of at least 15 minutes.

(2)          An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes.”

The essence of this complaint is whether the complainant received the breaks to which they are entitled to receive under Section 12 of the Act. The complainant alleges that they did not receive such breaks, while the respondent argues the contrary maintaining that the complainant had ample time to take breaks and after the 8 August, the opportunity to roster his own breaks.

To demonstrate that the complainant did get his breaks, Section 25(1) of the Act requires employers keep records to show compliance with Section 12 as follows:

 “(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making” 

Section 25 (4) states

“(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

 The respondent was unable to show that he complied with the provisions of section 12 of the Act. In Tribune Printing & Publishing Group v Graphical Print & Media Union (DWT 6/2004) the Labour Court held that an employer had not only an obligation to ensure that their employees received rest breaks but that;

“…stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty”

There is a policy in place requiring the employee to notify his line manager about a missed break. There is a conflict of evidence as to whether the complainant notified his line manager about missed breaks and the complainant’s evidence is not altogether convincing. But what is critical is the inability of the respondent to demonstrate that a system was in place which ensured that the complainant could take his breaks. It is well settled that appropriate records under Section 25(1) should show the timing and duration of employees’ breaks. Without this, the respondent is unable to refute the evidence of the complainant.

Based on the evidence, the absence of statutorily compliant records and for the reasons cited above, I find the complaint is well -founded. I require the respondent to pay the complainant the sum of €2140 in compensation for a breach of his rights under the Act of

A breach of Section 15 of the Act.

The reference in the complaint referral form to this complaint is the complaint’s statement that “he did not receive breaks and that he worked excessive hours”. The respondent argues that this complaint is not properly before the WRC as the complainant failed to identify a separate and specific breach of section 15 of the Act in the complaint form.

The issue of exactly what complaint and whether the complaint was validly before the adjudication officer was addressed in A Former Tutor v An Education and Training Board, ADJ 00025369. The employee in that case brought a complaint under the Organisation of Working Time Act, 1998 and sought, at the hearing, to have the complaint addressed under the correct Act- the Payment of Wages Act, 1991. The Adjudication Officer quoted the case of County Louth VEC -v- The Equality Tribunal 2016 IESC40 where Mr Justice McKechnie in the Supreme Court stated:

“I accept the submission on behalf of the respondent that the EE1 form was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the where the justice of the case requires it, then a fortiori, it should be possible to amend a claim form as set in a form such as the EE1, so long as the general nature of the complaint remains the same”.

McKechnie, J further stated;

“I agree with the view that there is nothing sacrosanct about the use of an EEI Form to activate the Jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purposes. In fact, the Tribunal itself has so held in a Female Employee – v- Building Product Company DEC-E 2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end”

The Adjudication Officer in ADJ 00025369 was satisfied that the online complaint form used by the WRC is not a statutory form. Furthermore, her decision to amend the complaint form and” activate jurisdiction “was based on the fact that the information in the referral form to the WRC disclosed that the employee was seeking redress in relation to a non-payment of wages. The same principles allowing the amendment of a complaint were accepted in Eddie Byrne v Setco Limited, ADJ00030841.

The complainant’s statement in the complaint referral form to the WRC that “he did not receive breaks and that he worked excessive hours”, coupled with the complaint’s submission of 30 July 2021 allowed for clarity. I consider that the general nature of the complaint identified in the complaint form as to the nature of the infringement and set out at the hearing remained the same and is, I believe, sufficient to trigger activation of jurisdiction. His submission of the 30 July included details of working hours in excess of the weekly statutory limit, so the respondent was not surprised at the hearing as to the nature of his complaint.

The respondent was on notice of the complaint. I therefore find that this complaint of a breach of section 15 to be admissible.

Relevant Law.

 Section 15 of the Act states: -

“1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a ‘‘reference period’’) that does not exceed— (a) 4 months, or (b) 6 months— (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.”

The respondent submitted rosters after the hearing which indicated rostered hours in compliance with the statutory weekly limit of 48 hours, but these rosters stated that hours were subject to change. The respondent’s response to this complaint is that the complainant expanded his rostered hours of his own volition. The respondent did not deny that the hours which the complainant submitted as having worked had not been worked, and in fact stated all extra hours worked by the complainant were paid for.

The Labour Court in the case of IBM V Svoboda, DWT 0818 dealt with the matter of an employee in a managerial position denied her rest periods and obliged to work in excess of an average of 48 hours. In contrast to the instant case, the respondent in the latter case made efforts to constrain the employee from working additional hours. The respondent in this case advanced no evidence of scrutiny in discouraging this complainant from exceeding the weekly 48-hour statutory limit. The operative obligation in Section 15(1) is that the employer should “not permit” weekly working hours in excess of 48. The respondent cannot confirm if the complainant’s hours fell within the statutory limit of 48 hours.

Because of the responsibility which lies with the respondent to implement the provisions of the Act and for the reasons stated above, I conclude that the respondent is in breach of section 15 of the 1997 Act.

I require the respondent to pay the complainant the sum of €3231, which represents three weeks wages in compensation for this breach.

CA-00041781-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate this complaint of constructive dismissal. Section 1 (b) of the Act 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.”

In light of the statutory definition contained in section 1 of the Act of 1977 as amended, the resultant and established principles adopted by the relevant fora and the courts, the onus lies with the complainant to demonstrate that his resignation was justified.

In justifying his decision to terminate his employment the complainant will have to demonstrate that the circumstances of his dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) ICR 221 and described thus:

 “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 discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

These tests were followed in a line of Irish authorities including Paris Bakery and Pastry Ltd v MrzljakDWT 68/2014.

Applying the tenets of Western Excavating (ECC) v Sharp (1978) ICR 221 to the instant case, the complainant’s case rests on his characterisation of the respondent’s conduct as conduct amounting to a breach of the contract of employment, coupled with conduct so unreasonable as to leave him with no option other than resignation.

Breach going to the root of the contract.

The complainant argues that the misuse of the disciplinary process in addition to the respondent’s failure to maintain a relationship of mutual trust and confidence constitute breaches of the contract of employment.

Concerning the alleged misuse of the company’s disciplinary procedure, it permits suspension for instances of gross misconduct. The list of behaviours constituting gross misconduct and found in the company’s disciplinary procedure include the incidents for which the complainant was investigated and held culpable in relation to two of them.

Concerning the activation of the second disciplinary process on 25 September, his contract does not permit him to work for a competitor without the express and written approval of the respondent which he neither sought nor obtained.

I accept that the respondent’s introduction of matters which strayed beyond the complaints which the investigator had upheld against him was an improper use of the disciplinary process. Valid concerns were raised about how the respondent marshalled evidence against him concerning these complaints, but this was not challenged by the complainant as a basis to appeal the sanction, No appeal was lodged against the sanction. On the basis of the evidence adduced, I accept that the sanction was based on the two complaints which had been upheld against him.

The Supreme Court in Berber v Dunnes Stores Limited (2010) IESC 10 set out the following approach in assessing whether a contractual term of mutual trust and confidence was broken by the employer’s conduct:

“1. The test is objective. 2, the test requires that the conduct of both employer and employee be considered. 3 The conduct of the parties as a whole and the accumulative effect must be looked at. 4.The conduct of the employer complained of must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In terms of the “the conduct of the parties as a whole”, I find that the managing director had an obligation to all of his employees. The’ stonewalling ‘attitude of the complainant, evident in the uncontested minutes of the meeting of the 17 September contributed to the very combative climate at the disciplinary outcome meeting. I do not find  that the accumulation of the respondent’s conduct at the disciplinary outcome meeting, the issue of a final written warning, or the activation of a second disciplinary process and suspension reached a level and nature that represents an immediate  repudiation of the contract of employment as the complainant had at his disposal a grievance procedure to challenge the managing director’s conduct both at the disciplinary outcome meeting of 17 September, and thereafter.

Unreasonable conduct of the employer.

The second test which a complainant must meet in a complaint of constructive dismissal is to demonstrate that the employer’s conduct was so intolerable as to warrant his resignation. The conduct of the respondent at the disciplinary outcome meeting of the 17 October was aggressive, unreasonable and improper. He was unable to bring the type of restraint expected in such a setting. He fused, incorrectly, his desire to dispose of all outstanding inter- staff issues with the purpose of the meeting, which was to see the disciplinary process through and decide, if necessary, on a sanction in respect of the complaints which had been upheld against the complainant. I accept the evidence of the managing director that he assured the complainant on the 17 September that he would not be fired.

Given the complainant’s contribution to the events of August and September 2020, I do not find that the respondent’s behaviour reached a level which was so intolerable that the complainant’s resignation was justified in the context of a hitherto, unproblematic relationship and the failure to appeal the outcome of the meeting of 17 September, an outcome reportedly influenced by the managing director’s attitude.

Reasonableness of the employee’s conduct.

The reasonableness of the employee’s conduct requires to be examined in a complaint of constructive dismissal. The bar in determining constructive dismissal is set very high as stated in McCormack v Dunnes Stores, UD1421/2008, where the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she had acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his/her grievance with his/her employer”

The requirement to use the agreed procedures in cases of constructive was followed in Terminal Four Solutions v Rahman, UD 898/2011 and in many other decisions.

It is accepted that the working relationship up until September 2019 was unproblematic. The complainant declined the respondent’s efforts to activate the grievance procedure and to have a third party address his complaints about the managing director’s behaviour towards him, or to attempt to resolve them informally.  Nor did the complainant activate the grievance procedure when he was placed on paid suspension for a second period. He declined the respondent’s offer to him to reconsider his resignation.

I do not find that it was reasonable conduct on the part of the complainant to disengage from all attempts to find a resolution other than resignation.

I find that the complainant has failed to meet the two tests, namely the “contract test” and the “reasonableness test”, set out in Western Excavating (ECC) v Sharp (1978) ICR 221, and which a complainant must meet in order to succeed in a complaint of constructive dismissal.

Based on the oral and written evidence and for the reasons cited, I find that the complainant has failed to discharge the onus of proof required in a case of constructive dismissal.

I do not find this complaint to be well founded.

CA-00041781-001. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €2,140.

CA-00041781-002. Complaint under section 27 of the Organisation of Working Time Act, 1997

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €2,140.

In addition, I find the complaint of a breach of section 15 of the Act to be well founded. I require the respondent to pay the complaint the sum of €3231.

The total amount to be paid in respect of these two  breaches is €5371.

CA-00041781-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I do not find this complaint to be well founded

Absence of records demonstrating compliance with the Act of 1997. Constructive dismissal; not upheld; failure to use procedures