Complainant

Respondent

Anonymised Parties

A complainant

A respondent in the catering sector

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-00046744-001

19/10/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The hearing took place in a hybrid fashion with the complainant giving her evidence by video link.

The complainant and the two company directors (for the respondent) gave their evidence under affirmation. The respondent made written submissions; the complainant confirmed receipt of those submissions. Both parties were offered the opportunity to cross examine the witness(es) for the other party, the respondent cross-examined the complainant, the complainant refused the opportunity to cross examine the respondent witnesses, choosing to make a statement instead.

Two of the witnesses made reference to having hidden disabilities which are central to the consideration of this complaint.  I consider that these disclosures amount to special circumstances and accordingly, I am anonymising this decision.

The complainant submitted that she worked with the respondent company for two years as a supervisor.  She submitted that she sought a pay rise which resulted in her being subjected to an impromptu performance review. 

The complainant submitted that she was told that no one liked working with her including one of the directors.  She submitted that she received no formal warnings nor any notice of a performance review.  She stated that her mental health issues were brought up in the course of this review.

The complainant submitted that she resigned as a result of this treatment and that this was not an environment she wanted to go back to.  She submitted that it was clear she wasn’t wanted and stated that she wouldn’t want to go back to an environment where they thought so little of her.

The respondent submitted that the complainant was employed since May 2019 and was promoted to supervisor in January 2020.  The respondent indicated that the promotion was accompanied by an increase in salary.

The respondent submitted that the complainant repeatedly indicated that she was going to leave to travel.  When the restrictions from Covid came into effect all staff were let go but the complainant was the first staff member called when they planned to reopen.  The complainant indicated that she wasn’t comfortable returning and only came back in August 2020.

A number of issues arose with the complainant during the following period and matters came to a head when two staff members resigned and cited the complainant’s behaviour in their exit interviews.  Another staff member noted that he would move to a front of house position but would not work with the complainant.

The respondent raised these matters with the complainant who immediately resigned.

The complainant gave evidence that she had sought a pay rise and instead was subjected to a performance review without any notice.  The complainant stated that she was that she was told that no one liked working with her including one of the directors.  She stated no formal warnings were ever given to her and that she did not receive any notice of a performance review.  She stated that her mental health issues were brought up at this stage and that she resigned as a result of this treatment and that this was not an environment she wanted to go back to.  She stated that it was clear to her that she wasn’t wanted, and she gave her reason for resigning outlining that she wouldn’t want to go back to an environment where they thought so little of her.

The respondent witness (a director who was the manager involved with the day-to-day operation of the restaurant) outlined how they operated a restaurant pre Covid but only a takeaway and, when possible, an outdoor service upon reopening.  A large part of their business revolved around delivery services, and they were frequented by couriers for food orders.

The manager stated that although they tried to create as safe an environment as possible for returning staff, the complainant would get upset at small things.  She was easily irritated in the workplace and could get quite upset.  Throughout this time the complainant talked about leaving, she wanted to travel but couldn’t.  It seemed to her that the complainant had issues with leaving and travel rather than with the work environment.

The witness noted that it was aware of the complainant’s mental health difficulties and stated that she could empathise as she had some experience of this type of issue herself.  The complainant was offered time off but did not avail of the offer at this stage.  This was confirmed by the second witness for the respondent and was not contested by the complainant.

The manager outlined that the business had its two-year anniversary and had a birthday party for staff.  The complainant appeared to be very upset at the party.  The manager said that she checked in with the complainant and subsequently gave her two weeks paid sick leave.

The manager outlined that in June and July 2020 two staff members resigned and as part of the process she conducted an exit interview with the staff members.  The witness recounted that both people, unprompted, gave the complainant as one of the reasons they were leaving.  The exit interviews were conducted on a one-to-one basis.   The two directors discussed the issue and agreed to raise matters with the complainant but to wait until after the staff members had worked out their notice.  The also had regard to the complainant’s mental health difficulties.

The witness outlined that while she was on leave the complainant sought a pay rise from the other director who said that he would have to discuss matters with the witness.  Upon her return from leave, the witness outlined that she had received a bullying complaint from a staff member against the complainant and further outlined a strange incident which occurred on 13 August, where the complainant came to the restaurant one evening clearly under the influence of alcohol. 

Arising from all of these issues, the two directors met with the complainant to outline the issues that had arisen with various staff members, to deal with the request for a pay rise, and to raise their concerns on August 15.

The witness outlined the complainant’s response to raising its concerns, whereby she resigned.  The complainant outlined how she felt mistreated over the duration of her employment.  The witness asked her to consider this overnight, but the complainant insisted that she was going to resign.  The respondent contacted the complainant the following day and informed her that she did not need to work out her notice.  The following week the complainant sought and received a good reference from the respondent.

The complainant noted that she was treated very badly, and that the manager was a very difficult person to work for.  In cross examination she noted that she didn’t raise any of the issues she was facing in work because “she was working through it” and added that she was terrified of the manager. She noted in her closing statement that both parties had made communication errors and that the respondent can’t use her mental health as an excuse not to raise issues with her.

Having considered all the written and oral evidence in relation to this complaint, I note that the respondent outlined a series of events and occurrences during the complainant’s employment where they treated the complainant in am empathetic fashion due to her mental health difficulties.  The complainant claimed that they should not have done this. However, when the respondent began to raise the employment related difficulties and bullying allegations with the complainant, she stopped them from doing so and resigned.  Having considered these matters, I am satisfied that the respondent behaved in the manner that they were obliged to and that they fairly raised employment related issues with the complainant.  The complainant resigned before hearing all the issues and without exploring all of her options.  I am not satisfied that the complainant has established that she was constructively dismissed. Therefore, I find that the complainant was not unfairly dismissed and resigned from her employment.

Having regard to all the written and oral submissions, my decision is that the complainant was not unfairly dismissed under the Act.

Unfair dismissal – constructive dismissal not established