FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: SNEEM HOUSE HOTEL LIMITED T/A SNEEM HOTEL (REPRESENTED BY CLODAGH BRICK B.L, INSTRUCTED BY MALONE HEGARTY SOLICITORS) - AND - MR AUKE SCHOTS (REPRESENTED BY LANE KELLY ASSOCIATES) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) ADJ-00029071, CA-00038763-001 This is an appeal by Mr Auke Schots (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00029071 - dated 10 January 2022) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant’s claim of constructive unfair dismissal by his former employer Sneem House Hotel T/A Sneem Hotel (“the Respondent”)was not well-founded. The Court heard the appeal in Cork City on 12 October 2022. Position of the Complainant The Complainant was unfairly dismissed from his employment by reason of constructive dismissal on 13 of February 2020, after his employer informed him at a meeting in January 2020 that they wanted him to step down from his role as Head Chef. As Head Chef the Complainant was responsible for all aspects of the kitchen including food, weddings, purchasing, stock, and department profitability. The kitchen was a particularly hectic workplace with chronic staff shortages which meant that staff had to work excessive overtime and extra rosters. Notwithstanding these difficulties the Complainant was repeatedly complemented on his performance by guests, the general manager, and the owner. In April 2019, three kitchen staff left to go to a competitor which placed a great strain on the remaining kitchen staff in terms of hours of work, rostering, and overtime. The Complainant made suggestions as to how staffing problems could be addressed in the future. In early 2019 the Complainant suffered health problems. He underwent tests and was deemed to be suffering from back pain and significant signs of stress and overwork. On 16 October 2019, the Complainant attended a management meeting to review operations. After that meeting the General Manager emailed a memo to him on 19 October 2019 setting out six key discussion points, which she asked the Complainant to address as a matter of urgency. The six issues were commitment to the job, personal use of mobile phone, use of bad language, training of staff, menus, and interviews. There was no reference to a disciplinary warning in the memo. On 24 October 2019, the Complainant suffered a family bereavement. He worked his normal shift on 25 October and was required to work on 26 October although he had arranged cover. On his return to work he could not arrange cover for a scheduled medical appointment on 31 October. In frustration he told the General Manager that he was fed up with his position and no longer wished to be Head Chef. He regretted his action and within minutes told the General Manager that he was fully committed to his job. He cancelled his medical appointment of 31 October. On 22 January 2020, the Complainant was summoned to a meeting with the General Manager, Ms Nicola Duggan, and the hotel owner, Mr Louis Moriarty. He was told that they wanted him to step down as Head Chef, as they had no confidence in his ability to lead a team. Mr Moriarty said in an offhanded manner that the position of sous chef was available if the Complainant wanted it. On returning to the kitchen it was apparent to the Complainant that the other chefs had been advised earlier of what was to happen. He continued to fully carry out his duties as Head Chef. The General Manager acted as if nothing had happened. On 23 January 2020 the Complainant became aware that his position was being advertised. A former relief chef, Mr Paddy Mahon, told him that he had been approached to take up the position of Head Chef. The Complainant was in limbo. He subsequently made four unsuccessful attempts to raise a legitimate grievance to appeal the decision to dismiss on 22 January which were ignored. The Respondent’s continued refusal to open a grievance indicated to the Complainant that the matter was unresolvable. He believed he had no option but to resign as he saw the new job description as a deliberate raising of the bar to set him up to fail. He no longer trusted the Respondent. On 13 February the Complainant resigned by letter in which he set out at length the sequence of events and once again iterated his request for an appeal. There was no attempt to arrange an appeal. The Complainant submits that his employment contract was terminated when he was advised that the Respondent wanted him to step down from his position. No prior warnings were issued. No prior disciplinary hearing was held. He was not given a fair chance to appeal that decision or refute any complaints. When the Complainant saw the online advert for his position and was advised by a former colleague that he had been contacted to take up the position, the Complainant was convinced he had little chance of remaining at work, notwithstanding his several efforts to initiate a meeting to discuss matters. The Respondent deliberately frustrated each of the Complainant’s attempts to raise a grievance or to initiate a discussion and acted unreasonably by ignoring a month of emails. Ms Duggan had no right to determine if a grievance existed. He was not treated as a valued employee and the Respondent totally destroyed any trust that existed. The Complainant had no option but to formally resign. In all the circumstances the Complainant was unfairly dismissed or dismissed by reasons of constructive dismissal. Position of the Respondent A number of difficulties arose regarding the Complainant’s work conduct and relationship with staff. At a meeting on 16 October 2019 a number of these issues were brought to his attention relating to (a) use of bad language in the kitchen area, (b) training of staff, (c) menus, (d) interviews and (e) use of mobile phones in the kitchen area. The Respondent requested that these matters be addressed as a matter of urgency. This request was reiterated in a memo sent to him on 19 October 2019. A meeting was held on 22 January 2020 to discuss ongoing issues as no improvement was evident. The stress associated with the role of Head Chef was discussed at that meeting. The Respondent enquired if a role with less responsibility would suit the Complainant better. The Complainant confirmed that he was fine in his role and would continue as Head Chef. The Respondent refutes that a decision was made to remove him as Head Chef. He was not removed from his position. He continued in that role in late January and February 2020. A new job description was shared with him. The Respondent refutes that the Complainant’s efforts to appeal a decision made to remove him as Head Chef were not responded to. The Complainant was provided with a job description and accepted a request to attend a meeting to discuss that job description, which is directly contradictory to his assertion that a decision was already made to remove him as Head Chef. It is not clear why he sought to appeal the alleged decision to remove him as Head Chef whilst he simultaneously agreed to meet to discuss the revised job description. The Complainant seems to have incorrectly considered himself to be dismissed. The Complainant appears not to have realised how his contradictory correspondence was received and understood by the Respondent. The Respondent did not advertise the Complainant’s job or authorise any party to do so on their behalf. A job advertisement produced in evidence appears to relate to another hotel with an address on the same road some distance away. The Respondent refers the Court to the case ofBerber v Dunnes Stores (2009) IESC 10where the Supreme Court set out the test to be considered in assessing if constructive dismissal has in fact occurred and finding as follows:
(c ) that the conduct of the parties as a whole and the accumulative effect must be looked at and
The Respondent submits that in considering the cumulative effect of all interactions concerning the conduct of the employee and the employer they do not amount to unreasonable behaviour on the part of the employer. A Respondent has a duty to protect staff and an obligation to ensure that the Complainant was able to do his work in an environment that did not cause stress and upset to him and to his fellow employees. It is in that context that the various discussions outlined occurred. The Complainant was not dismissed, and he would be in his employment up to this time if he had so wished. There is an onus on the Complainant in alleging constructive dismissal to show that the behaviour of the Respondent was such that they had no alternative but to resign from their employment. The onus has not been discharged in this instance. The Complainant continued his role as Head Chef and was identified as such in written communication even after the alleged decision to remove him, which was not the case. The Complainant’s belief that he was removed from his position as Head Chef was misguided and unfounded. The Complainant was not removed from his role at any stage and there was no decision to do so. The decision to terminate his employment was made solely by the Complainant on resigning in February 2020. Witness Evidence The Court heard sworn evidence from the Complainant and a former colleague Mr Paddy Mahon and two witnesses on behalf of the Respondent, Ms Nicola Duggan, and Mr Austin Lawrence. The Complainant’s evidence The Complainant lived locally and had 11 years’ service with the hotel. He started as a commis chef, before becoming a chef de partis for four years and then a sous chef. In 2017 he was asked to take over the role of Head Chef and started that role in January 2018. The first year was very busy. Staffing was tight and an ongoing issue. He had no responsibility for hiring or firing, or for setting pay rates. He spoke to the owner about getting staff in earlier in the year to ensure they were in place. Although more costly it was nowhere near the cost of relief staff. There were no regular management meetings and things were managed as issues arose. On 16 October 2019, the Complainant attended a meeting to discuss how things could be improved for the following year, where a number of issues were discussed. The Complainant accepted points raised about his use of language and agreed that he talked on his phone during work time but said in his defence that he used his phone to text vegetable and fish orders. Staffing was also discussed. On 19 October he received a memo listing six items to be addressed and was annoyed that his commitment was included on the list as there was no mention of this at the meeting. He could not understand how his commitment could be questioned. He was not spoken to about the six issues again. He had an exchange with Ms Duggan, the General Manager, shortly after returning to work from bereavement leave on 29 October 2019 . He had booked a day’s leave for a medical appointment on 31stOctober 2019 but was unable to arrange cover. He told Ms Duggan that he couldn’t be the Head Chef anymore. It was a short conversation and five minutes later when he had gathered his senses he went back and rescinded his resignation, and this was accepted. The Christmas period was very busy. They were still looking for staff. In January he was called to a meeting in the General Manager’s office. Ms Duggan told him, “We want you to step down as Head Chef - we have no confidence in your ability to lead the team”.When he asked why she replied there had been no improvement since the last meeting. The owner, Louis Moriarty, told him that he was taking the piss and relief staff were costing the hotel a fortune. He told him that he might be better off as a sous chef. The Complainant walked out and rang the sous chef who told him that the General Manager had already rung him to see if he was available in case the complainant walked out. He subsequently received a phone call from Paddy (Mahon) asking what had happened, as he had heard that the Complainant was leaving. The Complainant told him that it wasn’t clear if they wanted him to stay, but it was clear they didn’t want him to be Head Chef. His wife then found a job advert which was posted three days earlier. A family member rang and established that it was the same hotel. From 22 January onwards there were no proper discussions, although he asked his employer to sit down and discuss the matter. He sent emails but did not receive a reply. He asked for a copy of the grievance procedure but did not get it. Louis the owner would not speak to him directly. All communications about rosters were suddenly by email. One day Louis asked if he’d like to come into the office. The Complainant said he would only attend if he could bring someone with him, as he was ambushed last time. The meeting did not take place. The Complainant said that he didn’t know what the story was. They did not tell him that he was the Head Chef. He just wanted to sit down and talk things out. He dreaded going to work. On 5 February he received an email from Ms Duggan. Attached was a job description for Head Chef with new duties in relation to wage forecasting and the hiring and firing of staff. In the Complainant’s view he would not have time to do that unless he got training. The Complainant never received a contract of employment as a Head Chef. He had not received training in the grievance and disciplinary procedures. He had asked to attend any courses that came up. He resigned by way of a letter which he handed to Ms Duggan on the 13 February 2020. Under cross examination, the Complainant accepted that management had spoken to him about his use of language in October but rejected that any other issues were raised. He agreed that he had responsibility as a head of department for recruitment, but said all decisions were made in discussion with Ms Duggan. He accepted that he was involved in training and retaining staff. He said that there was not an issue with the menus. For the past 10 years menus had changed at the start of the season and during the season if needed. The Complainant accepted that the meeting on the 16 October 2019 was an informal meeting and agreed that employers should give employees time to improve. He accepted that he had experienced personal difficulties. He also accepted that when he retracted his statement about leaving in October the employer accepted the retraction. The Complainant said that he was told to step down in January 2020 as management had no confidence in him. Ms Duggan’s exact words were “there is no easy way to say this, we want you to step down, we have no confidence in you”.The sous chef role was not mentioned until the last few minutes of the meeting. He accepted that he continued in the Head Chef role but said he felt in limbo. When it was put to the Complainant that he had never been demoted and that his job continued, he replied that they “tried to get a relief chef and they advertised my job”.The Complainant did not respond when Ms Brick put to him that the hotel location in the job advert was not Sneem hotel and is 20 km away. The Complainant said that he was not engaged in drafting the job description. He was asked to agree to it, but the role was more akin to an Executive Chef role which is a more senior role to a Head Chef. He said he was happy to meet to discuss the Head Chef job description. He wanted to sit down and discuss it. His email of 27 January to that effect was ignored. A week-and-a-half later he had heard nothing. Ms Brick put it to the Complainant that his email of 6 February was not reflective of someone who had been demoted and that he was a valued employee who lived locally and had long service with the hotel. She submitted that the hotel did not want him to go and there was nothing to warrant his resignation as he was not demoted. He voluntarily handed in his notice. The Complainant said it was very hard being told that they wanted him to step down. Everyone rolled over there, and he wasn’t going to accept it. He knew there was no turning back when his job was advertised and when Paddy was asked to come down as a relief chef. He did not ask the hotel about the job advert, but it did lead him to referring to the grievance procedure in his emails. He hadn’t realised there was a process to follow before that but was told by a friend that there was a grievance process to go through. He didn’t know about it. He resigned because he sent emails and wasn’t getting anywhere. He had suggested two meeting dates to discuss matters. The communications he received were for rosters and administration. Louis was not speaking to him. Evidence of Martin Patrick (Paddy) Mahon Mr Mahon told the Court that he previously worked as a relief chef with the hotel but left before Christmas 2019. On 23 January 2020 he received a call from Ciaran fromRelief Chefsin relation to relief work at the hotel for a month or two until they found a replacement Head Chef. He declined the offer for personal reasons at that time. He asked how the Complainant was doing and was told that he was on his way out and they want someone to go down and look after the place. He was friendly with the Complainant, and they had remained in contact. The following day he rang him out of curiosity to find out why he was being asked to provide relief work. Evidence of Ms Nicola Duggan Ms Duggan said that she had worked at the hotel for 15 years and was the General Manager for the past 12 years. She knew the Complainant for 11 years and they had a very good relationship. He was good at what he did, with a great palate and an interest in food. He had progressed and his role as Head Chef was a management position overseeing operations, training staff, liaising with management, maintaining standards, designing menus, et cetera. In October 2019, there was an end of season meeting to assess operations and how the hotel had performed. A few issues needed to be addressed and were addressed at that time. After the meeting Ms Duggan sent the Complainant a memo on 19 October 2019. She said that she was always on site and interacted with everyone on a daily basis. A meeting was held in January as there were concerns that issues were not addressed. She wanted to keep lines of communication open, as she was aware that the Complainant had some personal issues. He had a bereavement, and she knew that that had been a difficult time for him. She was shocked when he had told her that he longer wished to be Head Chef the previous October. He retracted the statement within an hour, and she put it down to emotional stress at the time. Ms Duggan said that there was no intention to remove him from his role or to give him that impression. They wanted him to know that if the stress was too much there was an alternative. They asked him if he wished to step down to a sous chef role. He had an emotional response and walked out of the meeting. A job description was drafted, and the focus was on rectifying issues. The Complainant remained in the position of Head Chef. She started putting matters in writing to the Complainant as issues raised informally were not being addressed. In her view she did not consider that the Complainant had any grievances to raise. There were operational issues that needed to be addressed. On 13 February the Complainant came into the hotel and handed her his resignation with immediate effect. She was a bit surprised. Ms Duggan said that the Complainant was a very valued employee, and he would still be employed in the hotel if he had not resigned. Ms Duggan said they did not place a job advert. She said that the hotel’s address is in Golden Grove whereas the job advert was for a role in Domneavane which is about 25 km away. Under cross examination, Mr Duggan said that no employee had ever raised a grievance in her 15 years in the hotel. She acknowledged that an employee had taken a case to the WRC, but to her knowledge that matter had not gone through the grievance procedure. Ms Duggan confirmed that there was a discipline and grievance procedure set out in the employee handbook and that she knew how both procedures worked. She said if there was a grievance she would follow the grievance process, however, there was no grievance in this case. When asked who decides what is a grievance, Mr Duggan replied that she would look at the procedure to see if there was a grievance. Mr Duggan said that she had a good sense of what a grievance is. Ms Duggan was asked about the email sent by the Complainant on 27 January 2020 which stated ”I believe that I have not been afforded due process are fair procedures in this matter. I was not given notice of the meeting on 22 January, I was not afforded the right to representation or to be accompanied at the meeting and I believe that no process of consideration was given in reaching this decision. I wish to appeal the decision that I step down as Head Chef in line with the company’s grievance procedures. Please clarify my current status and pay rate. I look forward to hearing from you”.Mr Duggan said that she did not view that correspondence as a grievance. Ms Duggan said that she did not feel it necessary to utilise the disciplinary procedure in relation to issues she raised with the Complainant. Issues had arisen in relation to his language and use of phones. Language can impact upon the flow of business. She was never concerned about his commitment and the reference she made to “commitment” in the memo of 19 October related to the Complainant’s commitment to resolve issues. Ms Duggan said she was not concerned about the Complainant’s stress levels in October, when he returned to work following a bereavement and said he was fed up. She was not concerned about his comments about resigning, as it comes with the territory. It was said in the heat of the moment, and he retracted it later that evening. Ms Duggan refuted that she told the Complainant”There is no easy way to say this…”or told him to “step down as Head Chef”. She said a suggestion was made to move him to a sous chef role. He walked out. She was concerned about the kitchen area, as she didn’t see results coming through. She communicated this to the Complainant. She could not recall telling him that he was not achieving the standards required, but she always talked to staff and had ongoing conversations. At that point issues were not addressed and the matter was getting quite serious. If the Complainant had personal issues she thought it might help to take the pressure off. The meeting was an informal one to suggest to him that he step down. It was not a disciplinary meeting. Ms Duggan said she could not remember if the Complainant was angry when he walked out of the meeting, but she had concerns so phoned his colleague Ken, the sous chef, to check on his availability to provide cover in case the Complainant left. She did not ask Ken to step into the Head Chef role. Mr Duggan said that the Complainant would still be employed as a Head Chef if he had not resigned. She did not consider the job description to be an increase in responsibilities. Every Head of Department is responsible for the costs in each department and the Complainant was aware of this. Responsibility for recruitment lies with management and the head of Department, with management responsible for advertising positions and the head of Department responsible for interviews. When asked why she ignored the three emails from the Complainant on 27 January, 3 February, and 6 February, in which he asked why he was asked to step down as Head Chef, Ms Duggan said that she did not ignore them. However, she accepted that she did nothing in response to those mails. When the Complainant handed her a letter of resignation she asked how much notice he would give, and he said with immediate effect. She did not speak to him after that point. Evidence of Mr Austen Lawrence Mr Lawrence told the Court that he was the owner and founder ofRelief Chef’sbased in Cashel, Co Tipperary. He said that the company did not supply any relief staff to the hotel in February or March 2020. There was no conversation or email in January 2020 and no details of any job in Sneem. Under cross-examination Mr Lawrence said that his colleague Ciaran did not attend the Court to give evidence because he was not asked to do so. The Law Section 1 (b) of the Act defines ‘dismissal’ for the purposes of the Act in circumstances where:
Where the fact of dismissal is in dispute a Complainant must establish that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. In order to succeed in a claim of constructive dismissal under the Act, a Complainant must demonstrate that his decision to resign his employment resulted from either a repudiatory breach of his contract of employment by the employer or such unreasonable behaviour by the employer that he could not fairly be expected to put up with it any longer. The Complainant asserts that his contract of employment was effectively terminated at the meeting on the 22 January 2020 when he was told to step down from his position as Head Chef and that as a result, he was unfairly dismissed from his employment by reason of constructive dismissal. He further asserts that the Respondent’s attempt to engage a relief chef to provide cover for him and advertising of his role by his employer amounted to repudiatory breaches. To amount to a repudiatory breach, the employer’s breach has to constitute a fundamental breach of the employment contract. A repudiatory breach allows a party not in breach to accept the breach and affirm the contract or to repudiate the contract. If the employee decides to repudiate the contract by resigning, he needs to do so in a timely manner otherwise his continuing to work can be taken to amount to an affirmation. The test by which a repudiatory breach of contract can be identified was set out by Lord Denning M.R. inWestern Excavating Limited (ECC) v Sharp [1978] IRLR 332as follows: “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.” Was the Complainant told to step down from his role? Ms Duggan refuted that she told the Complainant to step down as Head Chef. She did however accept that a suggestion was made at that meeting to move him to a sous chef role. She said that the reason why this was suggested was that the Complainant had personal issues at the time, and she thought it might take the pressure off him. The Complainant did not agree to this, and he continued on, and the Respondent continued to treat and regard him as Head Chef until he handed in his resignation on the 13thof February 2020. While there is some conflict of evidence about what happened at the meeting on 22 January 2020, it is clear that the issue of him moving to the position of sous chef was raised with the Complainant and he, not unreasonably, viewed this as an attempted dismissal and undermining of his position in the business. The Complainant continued to attend work and fully carry out his duties as Head Chef until the 13 February 2019 when he resigned his employment. During this time, the Respondent continued to refer to him as Head Chef in correspondence to him. In such circumstances, the Court finds that there was no repudiation by the Complainant of his employment contract following the discussion had on the 22 January 2019. The Complainant was not removed from his role of Head Chef before he resigned from his employment but there was an attempt by his employer to get him to agree to a demotion to sous chef and when he did not agree to this he was left in situ where the trust and confidence between the parties was eroded. The Court does not accept that the offer to move him to the position of sous chef was made to take the pressure off the Complainant. It is clear from the subsequent emails sent by the Complainant that he was clearly under the impression, rightly or wrongly, that the hotel wished to remove him from his role as Head Chef. He highlighted his ongoing anxiety and stress in relation to the matter in the emails sent to Ms Duggan and Mr Moriarty. He suggested two meeting dates on 10 February and 13 February. The replies sent by Ms Duggan on 5 and 7 February did not attempt to address his concerns in any meaningful way or confirm a willingness to meet to discuss those issues. Instead they sought that he confirm in writing his commitment to fulfil the requirements of Head Chef role and to address issues raised. While the email of 7 February clearly addressed the Complainant as “Head Chef of the Sneem Hotel” it gave no indication that it was willing to meet and discuss his clear concerns that he was being removed from that role. The email of 7 February 2020 stipulated that the Complainant revert by 14 February 2020 with his commitment to address issues. Was the Complainant’s role advertised? The Complainant told the Court that he became aware that his position was advertised online on 23 January 2020. He submitted a copy of an undated online advertisement from a company calledFuture Focusas evidence. That document advertised a role as Head Chef at a 4-star hotel with an address at Sneem Road, Dromneavane, County Kerry. He said he felt in limbo when he saw his job was advertised. The Respondent refutes that it advertised the Complainant’s role and asserts that the job advertisement produced in evidence relates to another hotel on the Sneem Road in Dromneavane, County Kerry, which is 20 kilometres away while the address for the Respondent hotel is Goldens Cove, Sneem. Having reviewed the job advertisement submitted in evidence, it is clear that the location of the purported job advertised is based in Dromneavane, County Kerry. The Court was informed that Dromneavane, County Kerry, is in a different location to the Respondent hotel, which is some 20 kms away in Goldens Cove, Sneem, County Kerry. As a result, the Court cannot find that the Complainant’s job was advertised by a company called Future Focusin January 2020. Did the Respondent engage a relief chef to replace him? The Court heard evidence from Mr. Paddy Mahon, who had previously worked as a relief chef with the Respondent. Mr. Mahon told the Court that on 23 January 2020 he received a call from Ciaran fromReliefchefsabout working at the hotel for a month or two until they found a replacement Head Chef. He said that he declined the offer for personal reasons. His evidence was that he asked Ciaran fromReliefchefshow the Complainant was doing and was told that he was on his way out. Counsel for the Respondent objected to this statement being accepted as evidence on the grounds that it amounted to hearsay. The Respondent’s position is that it did not speak to Mr Mahon or authorise any party to speak with Mr Mahon on their behalf, and that any contact made with Mr Mahon could only have related to another business on the stretch of road known as the “Sneem Road” where demand for chefs is high. Mr Austen Lawrence fromReliefchefsgave evidence to the Court. He said that no relief chef was provided to the hotel and that there was no communication on file about supplying relief staff to the hotel around this time. He told the Court that the reason his colleague, Ciaran, was not present to give evidence at the hearing was because he was not asked to do so. The Court notes that the person fromReliefchefsto whom the out-of-Court statement was attributed was not present at the hearing to give evidence on this matter. Consequently, the veracity of the statement attributed to this person could not be tested. In these circumstances, the Court finds that it cannot rely on the evidence tendered by Mr Mahon to establish that the Respondent engaged withReliefchefsto secure relief chef cover for the Complainant in January 2020. In assessing whether the employer’s conduct in this case amounted to a repudiatory breach of the employees’ contract of employment the Court finds that the Respondent’s suggestion to the Complainant to work as a sous chef may have undermined the trust and confidence between the parties but there is no evidence that the Complainant repudiated the contract, as the Complainant continued in his role as Head Chef. Furthermore, the Complainant did not establish to the Court’s satisfaction that the Respondent advertised his role or tried to engage a relief chef to replace him. In all of the circumstances, the Court finds that there was no breach of the Complainant’s contract of employment by the Respondent such that he was entitled to regard himself as having been dismissed. Was the employer’s behaviour such that it was reasonable for the Complainant to resign? The second question for the Court to assess is whether the Complainant was entitled to terminate his employment because of the actions of the Respondent. In cases of constructive dismissal, the Court must examine the conduct of both parties. This requires an assessment of the events leading up to the termination of the Complainant’s employment. The Court heard evidence about the employment relationship between the parties since the Complainant’s appointment as Head Chef in 2018, however, it appears to the Court that the key events that led to the Complainant’s resignation occurred over a three-week period from Wednesday 22 January 2020 to Thursday 13 February 2020. The parties accept that on Wednesday 22 January 2020 the Complainant attended a meeting with the General Manager, Ms Nicola Duggan, and the hotel owner, Mr Louis Moriarty, where the Complainant’s position was discussed. The Complainant’s evidence was that Ms Duggan said “there is no easy way to say this. We want you to step down as Head Chef. We have no confidence in your ability to lead the team, do the job or in your commitment. We haven’t seen any improvement since last meeting”.He said themeeting ended in an offhand manner when he was told that the position of sous chef was available if he wanted it. Ms Duggan disputed that testimony. She told the Court that the purpose of the meeting was to discuss ongoing issues and to keep lines of communication open, as she was aware that the Complainant had gone through a difficult time with personal issues. She wanted him to know that if the stress was too much there was an alternative and “if he wishedhe could step down to a sous chef role”. She said that he had an emotional response and walked out of the meeting. Ms Duggan said that there was no intention to remove him from his role or to give him that impression. There is a direct conflict of evidence in relation to what happened at the meeting. The Court did not hear evidence from Mr Moriarty who did not attend the hearing. What is clear is that the working relationship between the Complainant and the General Manager and owner deteriorated around this time and communication between the parties was poor. Ms Duggan told the Court that she had started to put matters in writing to the Complainant as issues raised informally were not being addressed. She said that she did not think it necessary to invoke the disciplinary procedure at that point. The Complainant expressed his surprise at suddenly receiving communications about rosters and administration by email. His evidence was that no regular management meetings were held, and that no further discussions were had about the matters listed in the memo dated 19 November after it was sent to him. For her part, Ms Duggan’s evidence was that she was giving the Complainant time to improve. What happened after the meeting on 22 January? After the meeting on 22 January 2020 it is fair to say that relations between the parties did not improve. Emails were exchanged which failed to bring clarity to the situation for either party. The Complainant said that Ms Duggan pretended that the meeting on the 22 January 2020 had never happened and emailed work instructions to him. He said that the owner Mr Moriarty did not speak with him until Friday 31 January 2020 when he asked him to a meeting, which he declined to attend without a witness. Throughout this period the Complainant continued to attend work and fully carry out his duties as Head Chef. The Complainant sent three emails to Ms Duggan and Mr Moriarty over this period seeking clarity about his employment status. In the first mail (sent on Monday 27 January) he notified his employer that in line with the grievance procedure he wished to appeal the decision that he step down as Head Chef and requested clarification around his current status and pay at that time. Later the same day Ms Duggan sent an email to the Complainant about rosters for the following Sunday and a meeting to discuss menus. On Friday 31 January 2020 the owner Louis Moriarty asked the Complainant to come to his office to discuss the matter. The Complainant declined to attend without someone else present. In a second mail sent on Monday 3 February the Complainant sought a response to his first mail and stated, “this matter and particularly the uncertainty regarding my future continues to be a cause of anxiety and a source of stress for me”. He asked for a response by the following Monday 10 February. Ms Duggan replied to the Complainant on Wednesday 5 February acknowledging receipt of his mail. Referring to Louis Moriarty’s request for a meeting the previous Friday, 31 January, to discuss the attached job description and requirements of a Head Chef, she requested that the Complainant revert back in writing to confirm his commitment to fulfil these requirements. The Complainant sent a third mail to Ms Duggan the following day, Thursday 6 February, and agreed to meet to discuss the job description with his representative present. He stated that the job description did not compare with his current role and that he was unclear about “what your intentions are in relation to my role as Head Chef”. He reiterated his request for the matter to be dealt with under the grievance procedure and suggested two meeting dates for the following week, 10 or 13 February 2020. On the following day, Friday 7 February, Ms Duggan emailed the Complainant stating ”As Head Chef of the Sneem Hotel can you please revert back to us in writing of your commitment to address these issues by Friday 14th February”. On Thursday 13 February the Complainant submitted his resignation to Ms Duggan by letter. The Complainant submits that the letter set out at length the sequence of events and once again requested an appeal. The Court was not provided with a copy of that letter. Ms Duggan told the Court that she did not speak to the Complainant after his resignation. Was it reasonable for the Complainant to resign? The question for the Court to consider is whether the cumulative effect of all of the interactions between the employee and employer crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the Complainant to resign. The Act places a high burden on a Complainant in a constructive dismissal case. In order to succeed in such a claim, a Complainant must establish that the employer’s unreasonable behaviour was such that he was justified in believing that he could not continue any longer in that employment. An employee must alert the employer to his situation by availing of the grievance procedure, where one exists, in order to allow the employer an opportunity to rectify the problem before resigning. The Complainant told the Court that he was aware that there was a grievance process to go through. He told the Court that his repeated attempts to utilise the grievance procedure were ignored and that his employer refused to acknowledge or accept that he had a legitimate grievance. Ms Duggan confirmed that there was a grievance procedure set out in the employee handbook. A copy of the procedure was not provided to the Court. Ms Duggan told the Court that it was not clear why the Complainant sought to appeal an alleged decision to remove him as Head Chef in three separate emails on 27 January, 3 February, and 6 February 2020. Her evidence was that she did not consider the Complainant had a valid grievance as he continued in his role. She refuted that she ignored the three emails but accepted under cross examination that she did nothing about them. Instead she sent the Complainant a job description by email on 5 February 2020 and requested by email on 7 February 2020 that he confirm his commitment to address issues raised. Whatever the purpose of the meeting on 22 January it is clear from the subsequent emails sent by the Complainant that he was clearly under the impression, rightly or wrongly, that the hotel wished to remove him from his role as Head Chef. He highlighted his ongoing anxiety and stress in relation to the matter in the emails sent to Ms Duggan and Mr Moriarty. He suggested two meeting dates on 10 February and 13 February. The replies sent by Ms Duggan on 5 and 7 February did not attempt to address his concerns in any meaningful way or confirm a willingness to meet to discuss those issues. Instead they sought that he confirm in writing his commitment to fulfil the requirements of Head Chef role and to address issues raised. While the email of 7 February clearly addressed the Complainant as “Head Chef of the Sneem Hotel” it gave no indication that it was willing to meet and discuss his clear concerns that he was being removed from that role. The email of 7 February 2020 stipulated that the Complainant revert by 14 February 2020 with his commitment to address issues. The Court has some difficulties with Ms Duggan’s evidence in relation to the two emails that she sent, which are at odds with her evidence about the meeting on 22 January. She told the Court that there was no intention to remove the Complainant from his role as Head Chef or to give him that impression, yet no effort was made to address his clearly stated concerns and anxiety about what he saw as the hotel’s attempt to remove him from his role. The Court finds that the Respondent’s failure to clarify this matter is directly at variance with its position that it wished to keep lines of communication open and help alleviate any stress if the Complainant found the Head Chef role to be too much. For this reason the Court preferred the Complainant’s evidence over that of Ms Duggan in relation to what happened at the meeting of 22 January 2022. It is also clear to the Court that the Complainant attempted to raise a formal grievance but was thwarted from doing so as the Respondent decided unilaterally, without any engagement with the Complainant, that the matter he raised was not a valid grievance. The Complainant requested on three sperate occasions to progress a formal grievance and the Respondent made a unilateral decision to dismiss that grievance without any consultation with the Complainant to clarify the issue of concern. In such circumstances the Court finds that there was an objectively perceived deficiency in the Respondent’s dealings with the Complainant and that the actions of the Respondent cannot be described as reasonable in relation to this matter. On 13 February the Complainant handed Ms Duggan a letter of resignation, in which he asserts that he set out at length the sequence of events and reiterated his request for an appeal. That letter was not opened to the Court and no reason given by either party for that fact. Ms Duggan said that she had no further contact with the Complainant once he submitted his resignation. In any case of constructive dismissal, the Court must examine the conduct of both parties. A failure to invoke the employer’s grievance procedure can be fatal to a complaint of constructive unfair dismissal. In this case it is clear that the Complainant sought to invoke the grievance procedure prior to his resignation. An employee is normally expected to be able to demonstrate that having brought a concern to his employer’s attention that he gave the employer a reasonable opportunity to address those concerns before resigning. The evidence given by the Respondent’s witness was that she did not entertain or progress the Complainant’s grievance as she did not consider it to be a valid grievance. In the circumstances of this case, the Court determines that the suggestion that the Complainant assume the role of sous-chef at the meeting on the 22 January 2020 in circumstances where the evidence of the Respondent was that one of the purposes of the meeting was to discuss ongoing issues with the Complainant, was unreasonable behaviour on the part of the Respondent. This was further compounded by the behaviour of the Respondent following that meeting in refusing to clarify matters and ignoring the Complainant’s repeated requests that the matter be addressed through the grievance process. The cumulative failure by the Respondent to address the issues in a meaningful way and provide the Complainant with reassurance that his position was safe or if it was not, what he needed to address, when and in what way created an atmosphere for the Complainant that became so difficult for him that his only option was to resign with immediate effect. Determination In all the circumstances, the Court finds that the behaviour of the Respondent was unreasonable such as to justify the Complainant terminating his employment by way of constructive dismissal. Decision The decision of the Adjudication Officer is overturned.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
