Complainant

Respondent

Parties

Marlena  Czerwonka

Byrdan Limited

Representatives

  self

Tom McEvoy Harrison O'Dowd Solicitors/ Emma Cassidy BL

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-00046692-001

14/10/2021

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

CA-00046692-002

14/10/2021

This complaint relates to a belief that the complainant’s role was essentially changed from being a customer facing one to working in the food preparation area. She is of the view that this move was a demotion. She had worked for nearly 15 years with the company. She was highly rated and very good at her job. She was promoted to the customer facing role where she liked the interaction with people. At a point she was asked to wear a uniform like other crew members who were assigned to kitchen duties. She was also asked to work in the kitchen and food preparation area. She found her treatment very stressful and demeaning. While she only worked part-time for about 9 hours a week, it was a very important part of her job. Eventually she had to leave her job due to stress as her complaints were not being heard. She had raised her complaint with her manager and with Human Resources.

The company stated that the complainant was in a customer facing job; however, arising from Public Health Regulations the operation of the in-house restaurant was severely curtailed. This meant that the complainant had to be reassigned to other work as the footfall in the restaurant dropped dramatically. The change that occurred solely arose since the restaurant was closed for business other than take away orders. The employer at all times continued to pay their staff during this difficult time. A customer facing role was solely curtailed because of external factors outside of the company’s control.

The complainant stated that her job was advertised on the 8th of May 2021.  She stated that because she worked part-time her job would not be needed. That decision to eliminate her role commenced with an instruction that she must wear a standard crew member uniform. Previously she wore a special customer care front of house uniform. That along with being reassigned to kitchen duties demonstrated that her job was being eroded and eliminated. The complainant stated that her rate of pay was higher than a normal crew member’s rate.

Two employees were promoted to customer care roles and that was another action by the company to eliminate her role.

The complainant was 15 years with the company and was highly assessed and valued with an excellent record.

Despite several requests to be allowed to go back to her previous role this was denied. She went out sick on stress and eventually had to leave as her employer’s behaviour was so unreasonable and had broken a fundamental term of her contract. She had to resign to protect her mental health.  Despite numerous requests by her she was left in limbo. The company stated she was still in a customer facing role; while the reality was, she was working primarily in the kitchen and serving food rather than greeting customers.

Eventually the complainant looked for a compromise and asked to be made redundant. This was refused.

The complainant has attempted to find work since she left on or about August 2021; however, has been unsuccessful in obtaining any role.

The complainant did not follow the company grievance procedure. There is no formal complaint.

The company was requested to make the complainant redundant. However, it couldn’t as her role was not redundant. In fact, there is a labour shortage to work in food and hospitality services.

There was no change in the complainant’s terms and conditions. The complainant’s role is at the same grade as a crew member with the same rate of pay.

The complainant states that her grievance relates to the period January 2021 to May 2021. This was a period when the Country was experiencing a rapid increase in Covid cases and hospitalisation. Arising from that Public Health crisis, all restaurants had to stop in house dining. This meant that the operating model moved away from take away and a restaurant service to just take away.

The complainant was asked to wear a normal McDonald’s crew uniform as the customer service uniform was not available.

The complainant was assigned to kitchen and food preparation duties as the restaurant was closed and customer foot fall in the restaurant dramatically reduced.

The period from January 2021 to May 2021 was a period of very significant curtailment of normal services.

The company was more than reasonable and in the context of a Pandemic the complainant’s dispute is more about seeking a redundancy payment or settlement.

There was no breach in any of the terms of the complainant.

The burden of proof in a constructive dismissal case is on the complainant to prove that the behaviour of the employer was so unreasonable and/or breached a fundamental term of their contract that she had no other alternative but to leave the company. That burden has not been met in this case.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(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, or

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

The employee argues that her job had in fact been externally advertised and that is a fundamental breach of her contract has occurred. The employer denies that is so and no evidence has been provided at the hearing to corroborate that assertion.

The Company reassigned her to kitchen and customer order duties as the restaurant was closed for all intent and purposes arising from public health regulations.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

Has a fundamental breach of the contract occurred in this case? There is no evidence that is so, as no corroboration has been provided to support the employee’s assertion that her job had been advertised as she was only part fulfilling the customer service requirements of 9 hours per week.  The primary reason for moving her to different duties arose primarily since the operation moved to take away only. That meant her previous role as a customer service representative was much diminished; particularly during the period when it is alleged the employer was most unreasonable.

The Government press office issued the following statement:

The Cabinet has approved measures that will allow for the reopening of the hospitality sector this summer.

From 2 June, hotels can reopen, followed by outdoor service at restaurants and pubs from 7 June.

On 5 July, bar and restaurants will be able to serve customers indoors again.

In a speech this evening, Taoiseach Micheál Martin said he was conscious of the challenges faced by sectors that have been closed longest and have suffered the most.

He said: "Pubs and bars that do not serve food have paid a very heavy price over the last year.

"To help them reopen successfully and safely, the Government has introduced a one-off grant scheme."

The complainant has not made out a case to show that the employer was in fact unreasonable. On the balance of probabilities this employer was more than reasonable and fair. There was no intent to undermine the employment relationship. No term or condition was changed. The facts do not support the case alleged that the employee had to leave the employment and that her terms and conditions were changed unilaterally.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

1.       The test is objective

2.       The test requires that the conduct of both employer and employee be considered

3.       The conduct of the parties as a whole and the accumulative effect must be looked at

4.       The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

The changes that occurred arose solely due to public health regulations and no fundamental breach in the contract occurred. The employer’s behaviour was entirely reasonable and could not amount to a fundamental breach of the contract.

The test to be applied is an objective one. I must consider the behaviour of both the employee and the employer. On the facts the employee left her employment of her own accord. There was not fundamental breach in the contract nor was the behaviour of the employer unreasonable.

Looking at the cumulative interactions between the employee and what the employee views as stonewalling and a failure to hear her grievances does that meet the threshold of unreasonableness?

The employee relies on several emails and meetings with management to demonstrate that her grievance was being ignored. I don’t accept the company’s position that no grievance was raised. The complainant raised this grievance with her manager, with the Operations manager and with HR. However, fundamentally there is no substance in the grievance that would meet the test as set out in Berber.  The factual matrix clearly demonstrates that the behaviour of the employer was fair and reasonable in the context of a Pandemic.

Can the cumulative effect of all interactions, concerning the conduct of both the employee and employer, have crossed the threshold having regard to the effects of that behaviour on the employee; where the cumulative effect of that behaviour could be deemed to have been improper and seriously damaged the relationship of trust and confidence? It is very clear that the interactions between the employee and management unsettled the complainant and caused stress. However, the interactions while difficult, looked at in the round and cumulatively do not amount to unreasonable behaviour as there was a reasonable explanation for all those interactions. The complainant should be wearing a McDonald’s uniform when the customer service role was no longer required; her job was not advertised; her monetary terms and conditions were not reduced.

 There was no improper behaviour that cumulatively and seriously damaged the relationship as the conversations occurred within the context of a very genuine management requirements that were reasonable. These may have caused stress; however, they occurred entirely from the need to adapt to the constraints placed on the business from the Pandemic.

The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that she was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim.

The employee’s terms were not unilaterally changed, and any change was provided for contractually; based on the mutuality of obligation that exists between the employer and the employee, and the necessary reassignment to duties other than front of house duties when the restaurant was closed. The complaint is not well founded.

CA-00046692-001

The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that she was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim.

CA-00046692-002

The employee’s terms were not unilaterally changed, and any change was provided for contractually; based on the mutuality of obligation that exists between the employer and the employee, and the necessary reassignment to duties other than front of house duties when the restaurant was closed. The complaint is not well founded.

Constructive dismissal