Complainant

Respondent

Parties

Patrick  Doherty

John and Sinead Houlihan Ltd T/A Nick's Restaurant

Representatives

Harrison O'Dwyer Harrison O'Dwyer Solicitors

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-00039139-001

11/08/2020

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

CA-00039139-002

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039139-003

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039139-004

11/08/2020

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

CA-00039139-005

11/08/2020

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

CA-00039139-008

11/08/2020

The Complainant commenced employment with the Respondent on 1 January 1991 and resigned on 23 June 2020. The Complainant is claiming constructive dismissal on the basis that he had no option but to resign – complaint CA-00039139-005. In his Complaint Form received by the WRC on 11 August 2020, the Complainant raised several other complaints, however, at the commencement of the adjudication hearing the Complainant confirmed that he was withdrawing all complaints bar his constructive dismissal claim. Accordingly, the following complaints are deemed withdrawn:

-        CA-00039139-001 – pursuant to the Organisation of Working Time Act [1997-2020]

-        CA-00039139-002 – pursuant to the Organisation of Working Time Act [1997-2020]

-        CA-00039139-003 – pursuant to the Terms of Employment (Information) Act, 1994

-        CA-00039139-004 - pursuant to the Terms of Employment (Information) Act, 1994

-        CA-00039139-006 – pursuant to the Industrial Relations Act, 1969

-        CA-00039139-008 – pursuant to the Organisation of Working Time Act [1997-2020]

CA-00039139-005

The Complainant stated that he was forced to resign from his position due to the conduct of the Respondent. The Complainant stated that he was employed as a kitchen assistant since 1991 with Nick’s Restaurant, Killorglin, Co Kerry. The Complainant stated that he was subjected to a campaign of bullying and harassment at the hands of Mr Sean Houlihan. Mr Houlihan and Sinead Houlihan had taken over the business of the restaurant in March 2018. The Complainant stated that he was forced to work excessive hours with little or no breaks which had a negative impact on his health. He stated that the Respondent “unilaterally” cut his hours of work but that notwithstanding his workload remained the same. He stated that when he tried to raise these issues he was met with an aggressive reaction from Mr Houlihan. He stated that he was forced to take sick leave but that despite being certified unfit for work, he received a series of demanding and hostile letters regarding his sick leave.

In his evidence at the adjudication hearing, the Complainant outlined:

-        His career history prior to and after the transfer of the undertaking to the Respondent in March 2018;

-        His duties and responsibilities as the longest serving employee at the time in the course of which he stated that he was familiar with all aspects of running the Respondent’s kitchen;

-        The effort and hours he put in to help the Respondent when the latter took over the business in 2018 – including assisting with suppliers, menus, maintenance of the building and the general running of the restaurant, as in the Complainant’s view, the Respondent had no prior experience of running a restaurant/business of this type.

The Complainant outlined that due to the layout of the building wherein the kitchen was downstairs and the main preparation of the food was done upstairs, that his legs were affected going up and down the stairs and were susceptible to swelling. He stated that he discussed the matter with the HR officer and in particular, he recalled conversations from May and June 2018 with the HR Officer and his colleague Mr Fogarty.  He stated that at the time he  “kinda conveyed” that the work was getting too much for him. The Complainant stated that the Respondent rejected rota proposals put forward by he and Mr Fogarty and instead proceeded to unilaterally cut his hours. Notwithstanding the Complainant maintained that he was still expected to do the same work and that there was no one else who could cover his work. The Complainant stated that he could not cope from July 2018 onwards in terms of keeping up the same high standards. The Complainant stated he was not “comfortable” talking with Mr Houlihan, that he was “afraid of him” because of his “shorttemper”. He believed the Respondent was trying to get rid of him.

By August 2018, the Complainant stated that both of his legs were affected, that they were continuously swollen, that he suffered from thrombosis and had developed an ulcer. The Complainant outlined that on 7 August 2018, he went to the HR Officer and stated that “he couldn’t stay going anymore”. According to the Complainant, the HR Officer stated that she could not take his resignation unless it was in writing. The Complainant then went to his GP and obtained a medical certificate to the effect that “because of the severity of the condition he was suffering from hewouldhave to take time off…”. He stated that when he went back to the office that same day/7 August 2018, he was confronted by Mr Houlihan. The Complainant informed Mr Houlihan that he could not work for PUCK fair. The Complainant stated that in response, the Respondent changed his tone and confronted him about standards being below the norm – which the Complainant accepted was the case due to his reduced hours. The Complainant stated that the Respondent was aggressive and said that the Complainant “was not going to close his restaurant” and that he also said to him “….don’t you fucking walk away from me when I’m speaking to you”. The Complainant stated that the Respondent showed him no respect, that he felt he was being used and that he felt hurt by the exchange that day as he had never been spoken to like that before. The Complainant stated that was his last time on the Respondent’s premises and his last direct contact with the Respondent.

It is the Complainant’s position that his difficulties arose from 2018 onwards post the transfer of the business to the Respondent. He stated that he worked hard, was a committed employee and that he never let the business down. His medical condition was exacerbated by having to continually stand but he said he possibly could have done other work of a more sedentary nature and could have organised a lot for the Respondent’s business without the necessity to be physically standing for so long. In the course of questioning by the Adjudicator, the Complainant accepted that he had never raised the matter of being deployed to an alternative role with his previous employers or with the Respondent.

The Complainant outlined that whilst on sick leave he sought the assistance of his Solicitor and that between the dates of 23 January and 9 August 2019, he endeavoured to raise a formal grievance in accordance with the Respondent’s Grievance Procedure. The Complainant furnished correspondence exchanged between him/his Solicitor and the Respondent. In that regard, his Solicitor’s letter of the 17th April 2019 stated that the Complainant wished to raise an internal grievance and that "under the Grievance Procedure set out in your Company Handbook client has instructed us to write to you requesting a copy of the list of volunteer contact person as prescribed by the Company Grievance Procedure.” Thereafter, by letter of the 30th April, 2019 the Respondent appointed a HR Consultant as its contact person for the purpose of the Grievance Procedure. In a subsequent letter of 9 August 2019, the Complainant – via his Solicitor – objected to the appointment of this HR Consultant on the basis of alleged prior dealings with the Respondent. The Complainant considered that the HR Consultant proposed by the Respondent “had his [the Respondent’s] best interest as opposed to the independence of the investigation”. In the alternative, the Complainant sought the appointment of “an agreed third party” which he stated was provided for in the Respondent’s Grievance Procedure. In the course of the adjudication hearing, the Complainant outlined his grievances which included the unilateral cutting of his hours, the excessive working demands which negatively impacted his health, his treatment by the Respondent and the lack of appreciation and thanks for his work.

The Respondent did not reply to the Complainant’s letter of 9 August, 2019 or a subsequent letter of 18 May 2020. Accordingly, the Complainant stated that he had no option but to resign. In his letter to the Respondent of 23 June 2020, the Complainant stated:

“I refer to the previous correspondence sent by my solicitor from 23 January 2019 - 9 August 2019. I have sought to raise a grievance in accordance with the Employee Grievance Procedure provided to me but unfortunately, you have chosen not to afford me the opportunity to resolve my grievances internally. Consequently, your conduct in the workplace and failure to handle my grievance has left me with no option but to resign from my position as Kitchen Assistant with Nick’s Restaurant where I have been employed since 1991”.

After his taking sick leave on 7 August 2018, the Complainant received a number of letters from the Respondent seeking to meet with him including on 31 January 2019 and 28 March 2019. The Complainant declined to meet with the Respondent on the grounds that he had been deemed unfit for work. By letter of 9 April 2019, the Respondent sought a letter from the Complainant’s doctor “to advise that you are unfit to attend a meeting to discuss your well-being and a potential return to work date”. The Complainant stated that he provided medical certificates to the Respondent and also offered to attend a medical examination by a doctor of the Respondent’s choice. The Complainant received two further letters from the Respondent on 27 June 2019 and on 16 July 2019 again seeking to meet with him.

The Complainant furnished a Medical Report from his GP dated 14 July 2020 which – inter alia – summarised the Complainant’s medical history and stated that on 7 August 2018, his GP considered his medical condition was not improving and that he could no longer continue to work as he was doing. The GP noted in his report that the Complainant “had been commenting….for a while that hewas having to work increasing long hours in the restaurant and that he was continually on his feet for long hours while at work and that he was finding it very stressful”.

The Complainant’s former colleague Mr Fogarty gave evidence as to the workings of the Respondent’s restaurant and its busy environment. Mr Fogarty stated that the Respondent was concerned about costs and wages, that he wanted to reduce the working hours including the Complainant’s and that he took direct responsibility for drawing up the rostered hours. This according to the witness left the hours for the business tight. The witness stated that initially he wasn’t aware of the Complainant’s health situation until the Complainant showed him his legs which he stated were very discoloured. Mr Fogarty stated that he did not raise any medical issue with the Respondent in relation to the Complainant.

In all the circumstances, the Complainant asserts that the evidence satisfies the contract and reasonable test applicable to constructive dismissal cases - that the Respondent’s refusal to engage with the Grievance Procedure constituted a fundamental breach of his contract of employment and that the Respondent’s approach was unreasonable in terms of what the Complainant was entitled to expect from a reasonable employer. The Complainant stated he therefore had no option but to resign. In terms of redress, the Complainant stated he was seeking compensation and his Counsel drew my attention to the case of Liz Allen V Independent Newspapers [2002 13 ELR]. The Complainant stated that his working conditions ultimately caused both his injury and caused him to resign and that both were “inextricably linked”.

The Respondent did not attend or provide any written submission.

CA-00039139-005

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

““dismissal”, in relation to an employee, means –

a) the termination by his employer of the employee’s contract of employment with the employer…..

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 I 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 is claiming he was constructively dismissed and accordingly, I must consider whether or not on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above. There are two tests to establish if a constructive dismissal occurred – the ‘contract test’ – i.e. that there was a breach of the contract of employment, such that an employee is entitled to terminate his/her employment and the ‘reasonableness test’ – i.e. that the behaviour of the employer was so unreasonable that the employee was entitled to terminate his/her employment. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that a complainant could not fairly be expected to put up with it any longer. These tests were enunciated in Western Excavating (ECC) v Sharp [1978] ICR 221 and have been relied on by the Labour Court. For example in NCBI v Ms Mary Cawley [UDD2138] the Court explored whether there was “any fundamental breach going to the root of her contract” such that it was reasonable for the Complainant to terminate her contract and/or whether the employer conducted its affairs “in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer, [and] if so…is justified in leaving”.  By the same token, a complainant is under the burden of establishing that he/she has conducted him/herself reasonably in terms of affording the employer the opportunity to address the issue which ultimately led to the termination of the employment. In that regard, in referring to the need to utilise established internal grievance procedures, the Employment Appeals Tribunal held as follows in Beatty v Bayside Supermarkets [UD142/1987]:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases…”

From the evidence I consider that the Complainant was clearly committed to the Respondent’s business. I am also satisfied from the evidence – in particular the Medical Report of 14 July 2020 -that the nature of the work involving long standing and up and down stairs impacted on the Complainant’s health. Further the Complainant’s evidence that his hours of work were unilaterally cut but that he was still expected to more or less carry out the same work – was not contested at the adjudication hearing. The Complainant’s last day of work was on the 7th August 2018. Whilst there was no medical testimony presented at the adjudication hearing, the Complainant’s GP outlined in the Medical Report of 14 July 2020 the Complainant’s medical difficulties prior to 2018 and stated that “When I saw him on 7th August 2018 his condition was not improving and…..I advised [him] at that stage he could no longer continue to work as he was doing….”.

Notwithstanding the obvious difficulties the Complainant was encountering prior to his last day of work on the 7th August 2018, his evidence at the adjudication hearing was that he had not - prior to that date - sought to be redeployed to an alternative role within the Respondent. Nor did the Complainant initiate the Grievance Procedure until 2019 at which time he was on certified sick leave. That being said, he was still an employee at that stage and his attempts to pursue a grievance were legitimate. In my opinion the correspondence exchanged between the Complainant and the Respondent did not assist in an attempted resolution of matters. In this regard I am of the opinion, that the focus on the HR Consultant proposed by the Respondent, the Complainant’s unfortunate inability to attend a meeting with the Respondent and the Respondent’s failure to respond to the Complainant’s letters of the 9th August 2019 and the 18th May 2020, ultimately led to the escalation of matters resulting in the Complainant’s resignation.

Having considered the sworn evidence and submissions, I am of the view that the Respondent was on notice of the medical difficulties the Complainant was experiencing and that in terms of the Complainant’s work, the Respondent should have attempted to respond in a pro-active manner. I consider that it was unreasonable of the Respondent not to do so. Further, I note from a contract of employment signed by the Respondent on 1/06/2018 that the Complainant was entitled to initiate a Grievance Procedure and that it was the Respondent’s policy “….that all grievances will be dealt without undue delay and resolved at the earliest possible stage”. I was furnished with copy of the Grievance Procedure which provided for a list of contact persons to facilitate the early stage of the process and for “an agreed third party” to conduct the investigation.  In the circumstances and considering the correspondence exchanged between the Complainant and the Respondent, I am not satisfied that the Respondent fairly or proactively engaged with the Complainant in relation to the Grievance Procedure. 

In all the circumstances, I find that the Complainant had no option but to resign his position. In terms of redress the Complainant is seeking compensation. At the adjudication hearing, the Complainant stated that he was earning €11.25/hour and that his average wage was €450 gross/week. The Complainant’s Medical Report of the 14th July 2020 outlined his medical situation both prior to and after his last day of work on the 7th August 2018. The July 2020 Medical Report also stated that “There was a reasonably good improvement in [Complainant’s] general and psychological health since he has been off work. Patrick will not be fit to return to work in anything like the capacity he was working before going on sick leave. It is unlikely he will be able to return to work unless he can find a relatively sedentary role that does not involve standing for any period of time”. At the adjudication hearing, the Complainant stated that he still had not got back to his previous health, that he was on sick benefit since he left his employment and that he did not have any prospect of employment as he was not fit for work anymore. In that regard, I note that the Complainant has not sought any alternative employment since he resigned. In light of the foregoing I make the below decision.

For the reasons outlined, this complaint is well founded. Section 7 of the Unfair Dismissals Act [1977-2017] provides as follows:

“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…….., or

(b) re-engagement…….,  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….., or

(c) (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…..”

I decide that the Respondent should pay compensation to the Complainant of an amount equivalent to four weeks gross pay – ie the sum of €1,800.00 – which I consider to be just and equitable in all the circumstances. This is subject to such statutory deductions as may apply.

Constructive Dismissal