ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031455
Parties:
| Complainant | Respondent |
Parties | Gabor Berenyi | J D Wetherspoon Plc trading as The Linen Weaver |
Representatives | Denise Mulcahy BL Aoife McCarthy Solr. Douglas Law Solicitors LLP | Kevin Bell BL Orla Veale Martin Solr. Kennedys Law |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00041993-001 | 15/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00041995-001 | 15/01/2021 |
Date of Adjudication Hearing: 07/04/2022 and 15/06/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment, or it was reasonable for the Employee to terminate his employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for Constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that he satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That is to say that the employer has conducted its affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the employer that is being 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.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from his place of employment (by reason of Constructive Dismissal) wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 15th of January 2021) issued within six months of his Constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would therefore have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair, the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement, or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
The within complaint was initiated by Workplace Relations Complaint Form dated the 15th of January 2021 and was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and on the understanding that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was legally represented and gave his evidence on Affirmation. I was provided with a comprehensive submission. The Complainant additionally relied on the short submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was Unfairly dismissed. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had legal representation at this hearing. The Respondent provided me with two written submissions. I have additionally heard from two witnesses for the Respondent – DF the Area Manager and DS a bar tender. All evidence was heard following an Affirmation. The Respondent witnesses were cross examined by the Complainant representatives. The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
The Complainant gave evidence on his own behalf. The Complainant commenced employment with the Respondent in 2012 and initially worked in the UK before travelling to Ireland as part of their expansion plan in 2016. The Complainant commenced his employment with the Public House based in Cork in 2018. In the Cork premises the Complainant had started as the Kitchen Manager before being promoted to Pub Manager. Staff numbers fluctuated between 45 and 70. This was a highly pressurised position which attracted a salary of circa €45,000.00. The Complainant said there was a constant need to be trained up on changes in the workplace in connection with food being served and products being introduced and in the recruitment and retention of staff. From November 2019 the Complainant was reporting to Area Manger known as DF. The relationship consisted of the occasional in person meeting as well as telephone catch ups. Their meetings were described as “bluebag” meetings and were an open forum to discuss all workplace issues and initiatives. DF had operated as Area Manager for 15 years and gave evidence on behalf of the company. The Complainant was concerned about security levels on the busier nights such as St. Patricks. He had felt the numbers of door staff were inadequate if things got out of hand indoors. Security was generally provided at night-time, and this left his staff vulnerable earlier in the day. A few incidents occurred in the course of 2019 which the Complainant would have reported up the line. He says he was looking for extra security but that there was a reluctance to provide this. He said that Management was of the view that security personnel was too expensive when paid by the hour. The Respondent rejected this suggestion as it had provided all members of staff with personal attack alarms and had increased security coverage. There also appears to have been extra CCTV, behind-the-Bar alarm systems, as well as an alarm that contacted the gardai. The Respondent said it was aware of safety issues and was continuously updating. DF gave evidence in this regard and described how any change to security measures would be preceded by a risk assessment (prepared locally by the Bar Manager) which would outline where recent incidents had given rise to further consideration. Following a particularly alarming incident in March of 2020, the Complainant wrote to DF about trying to relocate himself and his partner (who was then working in the kitchen). The incident involved a member of staff being attacked with a broken glass and proved frightening for both the Complainant and his partner as well as their staff and colleagues. The Complainant stated “I do not feel safe anymore”. He describes on a previous occasion as having been headbutted on the premises. It is clear from the tone of the request that the Complainant was frightened for his staff and himself though the Respondent has urged that I classify this correspondence as a letter seeking a transfer. The Complainant states that he believed that in writing this letter/email he was in fact also invoking a Grievance. DF indicated that he and the Complainant had reviewed all the safety measures in place in the immediate aftermath of the glass incident. He believed both he and the Complainant were happy with the security apparatus and measures in place. Within a few weeks the Respondent premises had been closed in response to the Covid pandemic. The Complainant says he felt that the issue he had raised and the transfer he had requested appeared to have been shelved. Certainly, he was not contacted regarding the content of the email or his transfer request. The Complainant said that he had a panic attack when he was due to return to the workplace in and around September of 2020 and that he was out for a further two weeks on certified sick leave. He returned to the workplace in October 2020. A Grievance was raised against the Complainant in September 2020. This had gone to the Personnel Manager initially and was investigated by DF. It was being alleged by a subordinate member of staff that the Complainant had been racially motivated when he failed to promote that member of staff. The Complainant has maintained his innocence of this allegation throughout. I would accept that the Respondent was bound to investigate the substance of this allegation and that is what they did. In fact, when the company went to investigate this issue a number of other complaints were raised by other members of staff to the extent that the Complainant ended up facing a multitude of issues concerning his management style, his recruitment processes, favouritism and his seemingly unacceptable treatment of some subordinate co-workers. The Respondent was undoubtedly concerned about any perceived breaches of Equality Law and their own internal Inclusion and Diversity policies. On the 23rd of November, the Complainant was invited to a Disciplinary Hearing to deal with the series of allegations, and it is noted that the Complainant was on notice of the fact that the issues raised by staff members could amount to Gross Misconduct attracting a sanction of dismissal. The Complainant resigned his position two days later on the 25th of November (by way of Solicitors letter) stating that there has been: “…an abject disregard for our clients safety and welfare in the workplace.” The Respondent has asserted that the Complainant’s decision to resign his employment was in response to the Investigation and potential Disciplinary process he was facing arising out of a subordinate employee’s Grievance. The Complainant maintains he was forced to resign his position as he felt he was not being provided with sufficient security and safety in the workplace. On balance I am not satisfied that the Complainant has discharged the burden on him to establish that he had no alternative other than tender his resignation. Whilst I accept that the Complainant was, quite rightly, concerned with issues of safety in the workplace there is no evidence that this was a burning issue which was being ignored or fobbed off by the Employer. Indeed, the evidence is that security measures had been ramped up in the year prior to the pandemic. I do not think that the letter/email sent to DF in March 2020 was an ultimatum or a Grievance and whilst it is a heartfelt statement of the Complainant’s state of mind, it’s objective is to seek an alternative location. To be clear, therefore, I do not accept that this letter/email was a formal Grievance upon which the Complainant can rely to overcome the requirement that he exhaust internal procedures before tendering his resignation. To my mind, the Complainant tendered his resignation when he was being faced with the considerable litany of formal complaints raised against him by his staff and which, at the time might have seemed insurmountable. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00041993-001 – The Complainant was not constructively dismissed, and the complaint fails. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00041995-001 – This Complaint is withdrawn as repetitious. |
Dated: October 10th 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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