Complainant

Respondent

Parties

Leanne  McGrath

J D Wetherspoon Plc  T/ A The Linen Weaver

Representatives

Denise Mulcahy, BL instructed by  Douglas Law Solicitors LLP

Kevin Bell BL instructed by  Kennedys Law

Act

Complaint Reference No.

Date of Receipt

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

CA-00042006-001

15/01/2021

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 15 January 2021, the Complainant, a Kitchen Manager submitted a complaint of Constructive Dismissal against the Respondent, who operates within the Hospitality industry. The claim was denied, and dismissal was disputed.

Both parties filed helpful written submissions which provided context and background for the case.

The Complainant was represented by Denise Mulcahy, BL instructed by Douglas Law and the Respondent by Kevin Bell BL instructed by Kennedy Law.

The Respondent business is registered in the United Kingdom. 

The Complainant was employed from January 1, 2015, across a number of roles until 20 December 2020. She worked full time in return for a salary of €3,330.00 per month.

The precis submitted by means of the complaint form reflected that the complainant had sustained psychological injuries as a result of a dangerous and stressful working environment causing the complainant “no option, but to leave “The Complainant had not found new work.

In claiming constructive dismissal, Counsel for the Complainant outlined that she had worked for the Respondent firstly in Dublin as a kitchen associate at two locations, before her promotion to Kitchen Manager. She left that position to take work at a Supermarket before commencing at the Respondents Cork premises in April 2018 as a Bar Manager.

Counsel submitted that the complainant faced daily difficulties in this role through “inappropriate lack of security staff “over the 24-hr period, presence of Gardai,” racist and abusive comments “from patrons in addition to abusive and aggressive intoxicated customers. The Complainant exhibited “Blue Bag” Incident record log during her tenure.

Counsel contended that the complainant had raised her concerns routinely with the Respondent. she said that the complainant was not trained in management of violence and aggression. she was a key holder at the business.

On July 1, 2019, the complainant experienced verbal abuse from an intoxicated customer when she requested, he leave the premises.

On August 9, 2019, the complainant witnessed a toilet in disarray with excrement on two patrons’ departure. There was no security staff available.

There were other challenging incidents the Complainant relocated to work in the kitchen as kitchen Manager and this became her main role from January 2020.

On March 1, 2020, the complainant was called to assist in   a further violent incident, where an on-duty manager was stabbed by a customer which traumatised the complainant. There was no security presence.

The Complainant reported the incident and received a rude response from the Manager, Mr A. She was provided with a counsellor telephone number in the UK. she was unable to return to work.

The Complainant was forced to leave her position as it had become untenable for her., her mental health was affected and she did not perceive that there was any prospect of real improvement, where complaints made had “remained largely unheeded and/or inadequately addressed.

It was the Complainant case that since 2018, she had raised security issues on a weekly basis to Mr B, Mr, Mr C at the business. As Area Managers, they were on full notice of the unsafe work environment.

Counsel argued that the Respondent should not be permitted to stipulate a grievance invocation when set against the complainant’s reality of repeated notification of personal concerns for her safety at work set against open drug use, intoxication and garda intervention.

Counsel contended that the Complainant was entitled to terminate her employment as the Respondent actions demonstrated that they were no longer intent on being bound by the essential terms of the contract on maintenance of security and personal safety.

Counsel referred to the cases of

Brennan v Dark Side Bars ltd UDD 2129

Blundell v CPL HealthCare and Tusla UDD 1616

Berber v Dunnes Stores 2009 ELR 61

Employer v A Worker ED 02/57, EED 0410

When she stated that the complainant had made extensive efforts to mitigate her difficult work situation to no avail. She could not reasonably have had faith in the Company HR processes at that juncture. The Complainant was entitled to leave.

At hearing, counsel for the complainant echoed the background to the case. She stressed that security was only available at the Respondent business during Thursday, Friday, and Saturdays.

She described the details surrounding the violent episode of March 2020 caused by a Gin glass, where blood was “all over the floor “This was later clarified in evidence by the complainant as “on her apron” she described the lingering effect that this violence had on the complainant. she accepted the offer of counselling, but she withdrew and hid in the kitchen. She said that the respondent efforts were “all too late “

Counsel confirmed that a Personal Injuries claim was live from September 2020. The Complainants Partner was the Bar Manager, but he was not there August to October 2020. Counsel contended that the resolution of the problematic issues was not within his remit at any rate as Mr A was in charge. She confirmed that the Partner also had a case before the WRC, which was part heard.

Counsel outlined that the business was closed through the pandemic:

March to August 2020

The business re-opened in August 24 to October 25. Another closure followed

The Complainant engaged with the Respondent, but she was wary as “nothing changed “. She lost faith.

Evidence of the Complainant:

The Complainant outlined that she had become Front of House Manager in 2018, where opening hours were 10.30 am Monday to Saturday and 12.30 pm on Sundays. It was a very busy working atmosphere, encompassing 2 bars and 3 floors with a typical 4/5 staff cohort. There was no security presence outside of Thursday to Saturday when the security presence stood at 1 or 2, without replacement.

One Manager was present up to 6pm.

The Pub hosted a cross section of customers with drug and violent incidents which prompted Garda intervention.

The Complainant gave evidence on an incident of service refusal in July 2019, which prompted the attendance of 3 Gardai to the premises, and a filed Incident / Acura report. She recalled that this incident did not prompt Mr A to raise a security alert. The Pub Manager was aware of the event.

A further event followed in August 2019, where two female customers became violent in the toilet area. The Complainant said that she was affronted by their screaming when they were asked to leave. There were immediate hygiene issues in their wake. There was no security, and the incident was logged on the Acura system.

A month later, she witnessed another aggressive and violent presentation.

The Complainant moved to the kitchen late 2019 and became leader to 14 staff.

In March 2020, while engaged in staff interviews, Mr X refused service to a group and asked them to leave. He was stabbed in response.

The Complainant stated that she initiated first aid and managed the incident by calling gardai and ambulance. Armed Gardai attended within 5 minutes.

She reported the incident and was instructed to cease trading by  a senior manager . She recalled that blood was on her apron, but not on the floor.

She described the response received from Mr A as “aggressive and rude “There was no security presence.

By 8 am next morning, Mr A was in the pub. Security was installed for a two-week period and was overtaken by lock down.

The complainant described her response as distraught and she confirmed that she took two  weeks ( one holiday ) off with pay and availed of 3   counselling sessions, keeping one in reserve.

Mr A offered her the support number, and she did not have further contact with him  during lock down.

The Complainant described that she was a key holder without training in the role and this presented as a concern when working late at night. she stated that she was not trained in managing challenging behaviour from customers.

The Complainant confirmed that the business re-opened on 24 august. She described feeling very nervous and not sleeping. she said she had flashbacks and found that she was avoiding staff. She said her mental health was affected.

Concurrent with that period, she was a witness in a grievance taken against her Partner.

She requested the presence of a locum Pub Manager, and this was provided for a two-week period until another lock down followed.

By then, she had lost trust in Mr A as no training was put in place and security started at 6 pm rather than 8 pm Thursday – Sunday.  The Respondent had suggested the presence of two floor staff as being cheaper than the €19 per hour for external security.

The Complainant recalled the November 30 zoom call with Mr A. She had already sought legal advice.

She accepted that she had confirmed that she was happy to return to work, she explained that she needed the money and denied she was cheerful. She was not reassured by the offer of personal alarms.

When asked by Counsel, why she had not confronted Mr A, she said that she had lost trust as she had observed a previous episode on how he had treated the pub manager. She stressed that she had tried to deal with issues on multiple occasions but was unsuccessful.

She confirmed that hers was an involuntary resignation as her safety concerns had not been addressed, causing a loss in trust and lack of support.

She saw no merit in the offer of transfer and felt that she would only be “pushed on “to Dublin.

During cross examination, the complainant confirmed her previous roles at the business in addition to a historical role as a Gym Instructor.

Counsel posed the question of whether the complainant accepted that difficult customers and confrontation were unavoidable in a Pub setting?. The Complainant countered this by stating that she should have had support and training and she would have liked mobile security, such as 2 Bouncers during opening hours.

In addressing the company response to the “March attack on Mr Z” The Complainant confirmed that she was paid for two weeks, one of which was annual leave. She confirmed that she received counselling. While Security levels were increased, she replied that this did not cover Monday to Wednesday trading.

The Complainant accepted that the Management team were laid off from mid-March 2020.

The Complainant confirmed that her Partner was involved in an issue of racial discrimination.

The Complainant confirmed that she had compiled a health check list on September 11 zoom call. She accepted that Mr A had agreed to follow up on further counselling. She replied that there was no follow up during October.

The Complainant said that trust had gone by 11 September 2020. she had asked for a training day then. she accepted that the holding manager was appointed before a further lay off from end of October 2020 until the business was due to re-open in December.

She outlined that by the November 30 meeting, she did not know what the meeting was about. She had specified that two security staff were required and noted that Mr A was not committed to that. Some training had occurred for Managers, but not for all. No training had been directed at key holders. She felt unsafe at work. Staff needed help and were without a manager.

The Complainant stated that she had tried to resolve issues, but did not trust Mr A. She referred to her previous dissatisfaction regarding a travel claim in the earlier Dublin posting which involved Mr A.

The Complainant accepted that her Partner had been disciplined at the business and that he had resigned on 23 November 2020 but countered that “that was nothing to do with her” He had been absent from the business 24 August -25 October.

The Complainant confirmed that she had invoked the first step of the grievance procedure. She said that she had not emailed or called Mr A in relation to the Pub issues.

She accepted that she had received a “cooling off “letter. She agreed that she had been offered a rota change. She did not recall being removed from key holder duties.

In response to the question on whether she had paused to reconsider her position, the complainant responded in saying that trust was gone and there was no support.

In respect of mitigation of loss, the complainant said that she had undertaken a course in January 2021. She had been 100% fit to work and was commencing new work in anew jurisdiction the week after the hearing, tenure indefinite in Hungary. The complainant exhibited some job applications .

By way of clarification, the complainant confirmed that she did not take  sick leave at the business outside of 2 weeks post March incident. she was not paid extra to be a key holder.

The Complainant confirmed that staffing levels had altered following the July 2019 incident. she said that limited staffing was allowed. The locum female Manager had not returned to the business post the second lock down.

The Complainant was unaware of what happened the perpetrators of the March attack. She confirmed that the interviews were for kitchen and front of house.

She clarified that she had sought training in dealing with drunk customers.

The Complainant confirmed that she received the minutes of 30 November meeting and signed them. She clarified that “no trust “was her reason for leaving.

She had applied for the course undertaken in January 2021. She confirmed that she had wanted to sort things out but had lost trust and the Personal Injuries action had followed.

She explained that she was on honeymoon in the aftermath of leaving work.

In redirect, the complainant confirmed her age on commencing work and that the March attack had been channelled through the criminal court.

Evidence of Mr B, Complainants Partner:

Mr B became Bar Manager in April 2018, the complainant reported to him. He submitted that he was curtailed as pub manager in terms of altering security, recognising this as Mr A s territory. He referred to an unexhibited email submitted by the Complainant.

He submitted that regular talks had occurred on “Blue Bag “

He confirmed that the complainant had left employment one month after he left. She deputised in his absence. He dismissed the March training as inadequate. He said that he was not trained.

Mr B outlined the hierarchical structure at the business

Mr A, area manager

Mr B Pub Manager 2018 – November 2020

Team Lead, Shift lead

He submitted that 2 people placed on door duty was insufficient.

In cross examination, he confirmed that the complainant had not escalated any specific complaints post the March attack.

By way of clarification, Mr B was uncertain whether his name was set out as a figure of authority on the Safety Statement.

He was unclear on the precision of timelines of occurrences. He clarified that he had not suggested any specific remedial action.

In closing, Counsel for the Complainant submitted that the Complainant was a young age in 2018 and had received negligible training in the role, while the respondent was not prepared to address training.

The March attack followed in 2020. Additional security could have been considered. The Complainant did not receive performance appraisal and the Respondent response to the march attack was poor and devoid of a training component.

The Complainant was not considered for refresher training, and it was not featured in either interaction of September 11 or 30 November.

Counsel contended that the company was a big organisation and a PLC.

She argued that the complainants’ concerns were not dealt with.

She summarised Mr As evidence as a tick the box approach and “going through the motions “This was an unreasonable approach.

The Complainant was compelled to resume her position for financial reasons. Hers was not a voluntary resignation. she was in a poor state of mind and had no confidence or trust that things would change

A table of loss and mitigation recorded a €53, 023 gross loss from 14 December 2020 to date of hearing (69 weeks). The Course undertaken by the Complainant in January 2021 was 16 weeks duration.

The Respondent operates within the Hospitality sector. The circumstances of this case centred on a pub/ restaurant in Cork.

The Respondent disputed that a dismissal occurred as the complainant had resigned voluntarily. The Respondent expressed a dissatisfaction with the lack of particulars on what motivated the resignation.

The letter of resignation dated 7 December 2020 reflected:

“Please accept my resignation from the position of kitchen manager at X working my two weeks’ notice. My last working day will be 20 December 2020. I wish the Team all the best in the future “

Counsel for the Respondent submitted that the violent episode of March 1, 2020, was witnessed by the Complainant, but managed supportively by the Respondent. The Complainant availed of a week’s holiday and an extended period of sick leave for which she received payment. She was also provided with 12 weeks of counselling.

The Complainant returned to work after the first pandemic related government restrictions between 24 August 2020 and 25 October 2020 without incident.

The Respondent held a back to work meeting with the complainant prior to the December re-opening and minutes were exhibited. The Complainant informed this meeting that she was happy to return to work. She requested a 10pm finish time as the dispersing of patrons late at night made her feel unsafe. This was agreed.

Counsel contended that the Respondent had actively engaged in systems review of personal safety in the complainant’s case. She identified the “space from the kitchen to the office “as a problem as this was the site of the March attack.

The Complainant requested more training for staff and an enhanced security presence on the entrance. the Respondent assured her that plans were in hand to address these points and the complainant did not request anything further but had added that Cork was “not a safe place to work” The Complainant did not seek any further counselling.

Counsel submitted that Mr A had considered the complainants statement on her safety concerns in Cork and inquired whether the complainant wished to consider a transfer. The Complainant agreed to consider it and Mr A told her he would be available for follow up the following Wednesday. The Complainant resumed work the next day and the next communication received by Mr A was the complainants resignation.

Counsel submitted that the Respondent had behaved reasonably towards the complainant. She had not raised an internal complaint or a grievance and had resigned precipitously without recourse to the respondent policies on stress management and grievance.

It was the respondent case that the Respondent had acted responsibly in the face of the complainants’ stated concerns

At hearing Counsel outlined that the Respondent had presided over and delivered on practicable security measures. He contended that the complainants’ requests for support in the workplace were met.

By its very nature, the Pub was busy, and risks were assessed.

Counsel concluded that in reliance on Conway v Ulster Bank, the Complainant had not exhausted the company internal procedures. She had not actioned the grievance procedure. She was obliged to exhaust both the formal and informal routes in resolution.

The Respondent relied on

Byrne v Howarth Bastow Charleston Wealth Management ltd UD 67/2014

Brennan v Dark Side Bars ltd UDD 2129

Blundell v CPL HealthCare and Tusla UDD 1616

In arguing that the Complainant had not been constructively dismissed and there was no objective justification for her resignation.

Evidence of Mr A, Area Manager

Mr A was with the Respondent business for 15 years. He commenced as an Associate in the UK and climbed the promotional ladder through Pub Manager role to now Area Manager, overseeing a number of locations.

Mr A gave an outline of the security profile in Cork, which comprised CC TV, Panic Alarm, Body cam, Risk Assessment and Standard Operation Protocol, (SOP)

He submitted that both he and Mr B had collaborated on a risk assessment of the pub in November 2019 and security was focussed on Thurs, Friday, and Saturdays, with scope for upward adjustment on specific occasions such as the jazz festival.

He recalled that there had been 12 incidents over the 2-5 years 2018, 2019 and 2020 which was not unusual.

In response to the March 2020 attack, he denied that he had chastised the complainant on that night. He had been on a day off and Mr Z had contacted him on his personal mobile device. He recalled phoning the complainant offering limited support.

He recalled visiting cork on the Monday afternoon afterwards and both he and Mr B undertook a security risk assessment, where door staff were increased, and customer training organised. the training was called “don’t do drunk” and was training to avoid escalation of a “drunk presentation “

Mr A confirmed that he had never refused to undertake security measures. Mr B had not requested any specific interventions. The Complainant did not request full security.

He confirmed the range of supports offered to the complainant n the immediate aftermath of the “march attack “before lying off took over.

He confirmed that a locum manager had been redeployed from Dublin between 1 October and 10 October 2020. No addition to that was sought.

He acknowledged that the complainant was still suffering but was clear that she had not requested security in her well being check list on September 11 or at her back to work meeting on November 30.

Mr B had told him that the complainants sleep was affected.

Mr A acknowledged that he too had been on lay off during the pandemic and it had not been possible to follow up on the complainants well being before September 11. He recalled that the complainant raised shift pattern, her concerns on leaving the pub at night and she was offered an early 10pm finish.

He submitted that door staff had been increased to cover 7 days post March. There were no plans to remove this to date.

Mr A said that the complainant did not make further suggestions. He checked in with her on December 3 and the shift change was confirmed. He said he offered support and encouraged the complainant to “make us aware of what we can do “

He was handed the letter of resignation personally by the Complainant. He had not anticipated it and it was low on content. He sought the complainant’s input but was met by “reduced dialogue “the Complainant carried on in her duties.

He submitted that the “cooling off “letter dated  December 9  was formulated by past discussions he had had with the complainant. He had valued her as an employee. He did not receive a response to this.

Mr A concluded by commenting that the grievance procedure was universally available to all employees, but the complainant had not actioned this procedure.

During cross examination, he responded to the complainant’s question on the occurrences of violence and aggression at the business as “being nothing out of the norm”

He said that he was not made aware of a review of security in April 2018. He confirmed that Mr B had not made him aware of concerns. He said he had not complained. He outlined that he had regular conversations on maintenance and staffing issues, but security issues were not flagged.

He recalled that during monthly garda liaison meetings that the Gardai as a body had not earmarked the Cork Pub as a particular cause for concern. The Company had no major concerns re Cork from 2019.

Mr A refuted Counsels contention that it was incredible that he had not been made aware of the concerns regarding security and the 2019 violent occurrences.

Counsel put to Mr A the complexity of the lay out of the business with space for up to 400 customers, 3 floors and a beer garden. Mr A reaffirmed  the 2-doorman presence 6/7 pm start Thursday to Saturday inclusive, without a need at that time for upward alignment.

He attributed responsibility for security to Mr B, who did not make specific requests. He affirmed that Mr B had delegated authority to bring in a bouncer, but Counsel disagreed.

Mr A  accepted that the 2019 incidents resulted in further contact with staff on Incidents and accidents. He re -affirmed that security detail was “active security “and countered that the complainant had not raised the topic of her security.

He denied that he attempted to reduce the cost of security by relying on cheaper security. Mr B responded by stating that the management of violence and aggression was 99% preventative in terms of refusing access.

Mr A contended that the complainant could have raised a grievance directly with her line manager.

He recalled that March 2020 training had consisted of role play and had lasted 90 minutes. The complainant had not attended due to illness and lockdown followed.

He confirmed that the Statement of Claim for Personal Injuries had gone to the Company HQ.

He said that it was 30 November when he became aware of the complainants’ concerns. his main concern for the complainant was that there was limited reason for her to be front of house. He rejected Counsel contention, that he was not genuine in this.

He accepted that emails had been submitted in January and March 2020, but these were not specific to the complainant and no specific recourse had been sought.

After the march attack, security had been placed over 7 days.

Mr A contended that the well being assessment was more than  a mere tick the box exercise. He argued that there was ample opportunity for the complainant to raise issues via Personnel or through her line manager.

Counsel concluded that the complainant did not receive training post the March attack and was entirely justified in leaving employment. Mr A refuted this and confirmed that there had been numerous levels of support and the complainant had not alerted him to door staffing patterns.

In clarification. Mr A confirmed that the Personnel Manager had engaged in debriefing with staff in attendance.

He told the hearing that he was aware that the complainant had anxiety and some PTSD

Appraisals were the territory of the line manager.

He outlined the fora available for discussion with him as weekly visits, email sand blue book weekly, grievance procedure.

Mr A submitted that he had no idea why the complainant resigned. He recalled that she was emotionless on handing him her letter of resignation.

Evidence of Mr Z, Victim of March Attack, and shift manager

Mr Z outlined that he still works at the business. He commenced as a glass collector there in April 2018. He pointed to Security improvements at the pub, such as portable alarms.

He submitted believed he had received support post the March attack, through Mr Bs contacts, full pay. He was debriefed by Mr B on the night and by Mr A, when he was released from hospital next day.

He recalled that a risk assessment was undertaken immediately after the event and training followed in customer management Door staff went 7 days and continued until February 2022.

Mr Z said that he had not picked up on any complaints from the complainant. He thought that Mr Bs departure would prompt her departure

During cross examination, Mr Z contended that the Respondent had responded responsibly to the violent incident. He said that the criminal case had been postponed in January 2021.

He had not been working the day of the pepper spray incident in 2019.

He stated that the complainant was genuine in response to counsel.

He added that security was not realistic from 10. 30 am as it is impossible to predict or pinpoint an occurrence of violence. Business resumed in August on 7-day cover 6pm to closing. This was communicated through the what’s app group.

He said that he had not completed the march training as he had already completed it.

On clarifications, he confirmed that the Pub Manager was listed on the group what’s app. Staff Meetings were rarely held by the Pub Manager. Body cams were introduced during 2020.

In closing, counsel for the Respondent contended that the company had not refused a single request made by the complainant.

They acknowledged that she had carried concerns which were understandable post the stabbing, but the company had responded reasonably by appointing a locum manager, customer management training provision and enhanced security presence. The business was closed for a number of months during 2020 due to the pandemic until it reopened both in August and December 2020.

Counsel concluded that the complainant had not attained the burden required of her in the case. the resignation was unreasonable as she had not utilised exhausted the internal process. Curry v Techmahinda 2124

The case for decision is a claim for Constructive Dismissal, which has been denied by the Respondent in the case. In reaching my decision, I have considered both extensive written submissions, the oral evidence adduced in addition to closing remarks from both Counsel.

It is an important chronological backdrop in the case that a Personal Injuries case was lodged by the Complainant in September 2020. This was live at the moment of her resignation on December 7, 2020. I will return to this aspect of the case later.

My jurisdiction in the case is provided in Section 1 of the Unfair Dismissals Act, 1977

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 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 practical terms, this can amount to a high bar for the complainant to prove.

In this case , the burden of proof rests with the Complainant to demonstrate that her resignation was involuntary .This means that “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 herself as discharged from any further performance

Western Excavating (ECC) ltd v Sharp [1978] IRL332 Lord Denning

In adopting the Supreme court dicta in wrongful dismissal case of Berber v Dunnes Stores, [2009] 20 ELr 61

This involved a case of a store manager who claimed that his Crohn’s disease was exacerbated by the actions of his employer.

The Supreme court considered whether there had been a breach of the implied terms of mutual trust and confidence in contract of employment.?

The court held that:

1 the test is objective

2 both parties conduct must be considered

3 the cumulative effect must be looked at

4 the conduct of the employer must be unreasonable and without proper cause, the effect on the employee judged objectively, reasonably, sensibly to ascertain whether the “employee cannot be expected to put up with it “

There is implied in a contract of employment a mutual obligation that neither the employer nor employee will conduct themselves in a way likely to damage the relationship of confidence and trust between them.

This is an interesting case as Judge Finnegan went on to comment in the context of the law regarding the corresponding personal injuries case

Stress is merely a mechanism whereby harm may be caused, and it is necessary to distinguish between signs of stress and signs of impending harm to health. Frequent or prolonged absences from work which are uncharacteristic for the person concerned may make harm to health foreseeable, there must be good reason to think that the underlying cause is stress generated by the work situation rather than other factors. Where an employee is certified as fit for work by the medical advisor the employer will usually be entitled to take that at face value unless there is a good reason for him to think to the contrary. As to the duty of care, the employer’s duty is to take reasonable care and if the risk of harm to health is foreseeable, the employer must act reasonably

I have reflected on both party’s evidence in this case. I found that the complainants’ submissions regarding provision of training strayed at times into the territory of a personal injuries case. My role in this case is to consider the facts surrounding a resignation from employment and to decide which I consider this to be a voluntary or involuntary action.

At the outset, I accept that working in a Pub can present as a challenging job. I accept that customers or disappointed customers post high levels of alcohol or even drugs can present as a direct challenge to the employees attempts to run a “safe pub and workplace “

The Complainant was employed for 2.5 years at this location across two roles Bar Manager and Kitchen Manager by the time of her resignation on December 7, 2020. Both parties accepted that she had a span of earlier employment at the Dublin Pubs.

Counsel for the Complainant requested that I consider the complainants young age on joining the industry, first in ~Dublin and from 2018 in Cork. I have considered this and find that the Complainant presented as a self-assured witness, who was familiar with the business and was competent in her reportage of blue bag incidents. It was also clear to me that her swift and competent management of the March attack may well have contributed to Mr Zs speedy recovery.

I found the Complainant to be comfortable in her role of Kitchen Manager outside of some residual trauma regarding the March attack and pressure from her 14 subordinates.

I found it unusual that the Complainant did not mention that she had participated in debriefing in the aftermath of the March attack.

She confirmed that she had benefitted from the Respondent sponsored counselling. However, the complainant contended that she was affronted by Mr As dialogue with her on March 1, 2020. Mr A gave a very cogent account of this conversation as he said that he had been on a day off and was contacted by a colleague, which prompted a next day site visit.

I found Mr A’s approach to this case very measured. He was clearly proud of his knowledge of how the business operated and that he had make a personal sequential career progression to Area Manager. To me, at least, he gave the impression of caring about the complainant’s welfare. I found strong evidence of this in the December 9 “cooling off “letter where he told the hearing that he had inserted an amalgam of what they had discussed in the letter aimed at securing a recant from the complainant.

Integrity is often referred to as “doing the right thing, when nobody is looking “I listened to Mr A’s account of how he managed the aftermath of the March attack, and my attention was drawn to his submitted request for payment for the complainant.

“…. The local guards are currently investigating the incident and myself and the personnel team are supporting Leanne and the pub team as well as getting LTC involved. There is a strong possibility that Leanne may require additional support and time off.”

I have interpreted this action for continued payment as an appropriate step in staff support.

What happened next was outside both the Complainants and Mr A s control, the business was closed due to government restrictions within 2 weeks and stayed closed for the following 4.5 months to August 2020.

Both parties accept that, while the Complainant continued with counselling, keeping one session in reserve, Mr A was on lay off and not available to the complainant.

It is of cardinal importance for me to reflect that the Complainants partner Mr B, the appointed Bar Manager was absent from the business from August to October 2020. Both parties reflect that a racial discrimination case was ongoing at the business and the complainant was clear that she was a witness in this case, which concluded with disciplinary action against Mr B, who left the business at the end of November 2020 and before the business re-opened for business on December 4.

I found Mr Bs evidence to be vague and I was unable to get an understanding of his sense of his own role of in-house responsibility for security. I was concerned that the complainant may have become an unwitting oracle for his dissatisfaction with the company. I say this as I found her very strident on the topic of universal security at the business, yet her contracted role was kitchen and not Bar Manager.

I found the complainants reaction to the respondent counsel to be very defensive as he asked questions on this occurrence. I found that she sought to distance herself from the topic. I formed the view that this topic was a veritable sub plot in the case and a highly likely source of the complainant’s plain hostility towards Mr A.

It is common case that Mr A was the Area Manager during this time, and I found that the complainants evidence reflected a projected anger against him. she attributed this to an earlier event while employed in Dublin, however, I identified a closer proximity in time.

This meant that the Complainant resumed work in August and worked continuously until the second lockdown in October 2020. During this time, the complainant engaged in a “Wellbeing check list “on zoom with Mr A.

The form reflected

“This form should be completed when you are told or could reasonably be expected to know that an employee may be suffering from a defined medical condition. /Disability, which may include physical and mental health issues “

The Complainant submitted that this was a tick the box event.

I found that the form captured the complainant’s health status at 6-month interval post March attack.

It recorded “some anxiety” “slowly adapting to being back at work” Anxiety when front of house.

She identified that her confidence “had been impacted and this will take time to rebuild “A further visit to the GP was planned for that week. she was not taking any medication at that time.

The complainant described some pressure from her work team in the kitchen.

A follow up meeting was planned for 6 weeks out.

The next engagement occurred on 30 November 2020 and was chaired by Hr and attended by Mr A and the Complainant. The meeting reflected the first in time personal injuries case.

Having considered both parties evidence in the case and the back up exhibited minutes of this meeting. I found that the meeting reflected a supportive management approach to the complainant’s work setting through an alteration of finish times, an encouragement on personal alarms and a concerted effort to align to complainant to the kitchen area as she was wary of the front of house reminder of the trauma scene from March 2020.

I found that the minutes reflect a positive “step by step “engagement by the parties which consolidated into an action plan, inclusive of an exploration of a transfer of employment.

The Complainant agreed to resume work without preconditions outside a delayed start and earlier finish time to 10pm

The minutes reflect a planned follow up the following Wednesday.

The case takes on an unusual turn at this point as 7 days later, the complainant handed her resignation to Mr A, quoted above. It was a plainly worded document, without reasons and with a message of good luck to the staff. for me, it read like a straightforward voluntary resignation.

However, I have been asked to recognise this as an involuntary action as the complainant could not simply continue in the business. This point is refuted by the Respondent who depicted a “work in progress “back drop to the Complainants employment.

The Complainant submitted that she had hoped for an internal resolution to her issues but was overtaken by legal advice. She worked for two weeks post submission of notice, without incident and without responding to the December 9 letter from Mr A, for the business.

I can accept that the sequence of manifestation of challenging customers and their drug and alcohol habits did take its toll on the complainant. She relocated from front of house to the kitchen but feared front of house exposure and was troubled by the demands of her staff.

The Complainant accepts that security was increased at the business in the aftermath of the March attack. I was taken by Mr Zs direct evidence when he pitched management of violence and aggression as largely preventative.

I was also taken by his frank disclosure that he guessed that the complainant would follow Mr B in resignation.

The Complainant told me that she had considered measures short of dismissal e.g., sick leave but she had lost trust in the business. for me, this stands as a stark antithesis to her engagement on 30 November where a reasonable analysis of the evidence and the recorded minutes was that of a bridge building exercise to “return to some peace of mind “post March 2020 attack.

I must also observe that by November 30, the complainant had not submitted any additional medical advice from her October, 2020  visit.

The Complainant has not tendered any expert medical evidence of PTSD, Anxiety lives at the moment of her resignation in this case. Furthermore, when asked to clarify her capacity to work in the aftermath of termination, she confirmed that she was 100% fit to find work.

I realise that the Complainant and Mr B married also during this aftermath period and now reside and work in Hungary.

In assessing whether the termination was involuntary, I must consider the steps taken by the parties.

I have found that the complainants recovery post March 2020 was directly impacted by the Pandemic lock downs. However, while the business was open and trading, I found that the respondent adopted a supportive approach to the complainant through the measures highlighted above.

They were prepared to build on that through 2021 as reflected in Mr A evidence and the “ cooling off “ letter .

I am troubled by the Complainants sudden resignation; I have not found a “last straw “moment. I have not found an argument or a reported or diagnosed exacerbation of a medical condition. I have not identified periods of absence from work or any other signs of pressure.

I have, instead found insufficient evidence of the complainant’s own reports that security and training fell below an acceptable standard for her, resulting in a loss of confidence in the company.

She did not stay back to test that theory through company procedures. The respondent had a visible grievance procedure, a relationship at work policy and a mental health policy. I have not identified that any of these suite of  tailored policies were actioned.

I appreciate that that might come across as a hard-line approach. However, the EAT has in the past considered a climate of interpersonal conflict where a grievance procedure was not known by the complainant when it held:

Maureen Keane v Western Health Board UD 940/88

Determining that the claimant had been constructively dismissed, the EAT found that the claimant had genuinely believed that the difficulties and stress she was experiencing had left her with no alternative but to resign. It found that the claimant's resignation could not be deemed a fully informed decision to terminate her contract of employment, as it was tainted by the claimant's confused state of mind at the time, coupled with her obvious lack of knowledge of the grievance procedure. It noted that as soon as the claimant had had the benefit of informed advice as to the alternative remedies open to her, she had conveyed to the respondent notice of her desire to revoke her resignation.

Regarding the respondent's policy to never reconsider an employee's resignation, the EAT found that this was unreasonable.

In that case, the complainant was refused an opportunity in the cold light of day to recant her resignation. The EAT found this unreasonable.

I must express a dissatisfaction at the complainant’s failure to respond or engage with the cooling off letter. I found it fairly worded and accommodating. I found it unreasonable that the complainant did not respond to this and cannot concur that the loss of trust was at its very height at that moment which the complainant said militated against a response.

The Respondent has built a large part of their arguments on a failure by the complainant to utilise informal and formal procedures and has relied on Conway in that regard

Conway reflected a request to change a work pattern and must be distinguished in the instant case as the request for a change in work pattern was acceded to by the respondent.

My attention was drawn to the very insightful case of

Mr O v An Employer No 2 [2005] ELR 132

Captured by Tara Murphy BL in the recent IELJ 2022 19(1) on That’s it, I quit, A review of significant Irish case law on disputed dismissals, when she said:

“The Labour Court indicated that it had attached significance to the respondent's decision to accept the complainant's resignation there and then. In evidence, the respondent had admitted that the complainant's resignation had had the appearance of an impulsive or irrational act. They had known the nature of the complainant's illness and of his emotional vulnerability. In the Labour Court's view, a reasonable employer would have paused before accepting a resignation in those circumstances and might have contacted the employee later to ascertain the reason for the resignation or to provide an opportunity for the employee to recant.”

I have found that the respondent behaved reasonably in response to the  complainants notice to resign in the instant case . In Mr O the Labour Court forgave the omission to activate the grievance procedure in a case of discriminatory dismissal.

There are a number of factors which, in the exceptional circumstances of this case, excuse the complainant's failure to formally complain to the respondent before resigning. First, the respondent did not have a grievance procedure in place. Secondly, the offending conduct was perpetrated by the principals of the respondent who knew or ought to have known what its likely impact would be on the complainant having regard to his temperament and mental fortitude. Thirdly, the complainant condition was such as to require him to avoid confrontational or stressful situations and this was known or ought to have been known to the respondent.

In that case, the Respondent did not host a grievance procedure. However, the respondent was in possession of medical diagnosis and reports in the case.

In the instant case, the employment was well supported by conflict resolution procedures across a range of headings. In her role of Manager, the complainant was  aware of this.I was struck by the evidence from Mr A that the complainants demeanour on submitting her resignation was

“ emotionless “ This suggests to me that she was at peace with her decision .

 I have not identified offending conduct from the respondent. Instead, I found that the respondent was in the process of taking appropriate steps to normalise the complainant’s employment post the March 2020 attack. The complainant had not placed the Respondent on notice of a diagnosed medical condition at the time of her resignation, despite recent GP engagement.

In all the circumstances of the case, I find that the complainant made a conscious decision to resign her position which was on the balance of probabilities tailored as an act of solidarity with her partner, who left following disciplinary action, some 4 weeks before.

I have found that the complainant resigned on a voluntary basis without giving the respondent time and space to conclude the supportive measures commenced from 2019 onwards in her case .

The Complainant was not unfairly dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant has not attained the high burden of proof for constructive dismissal .

The Complainant was not unfairly dismissed .

Claim for constructive dismissal