Complainant

Respondent

Parties

Jack  Cuddy

Ballyfin Demesne Limited

Representatives

  Self-represented

Ibec

Act

Complaint Reference No.

Date of Receipt

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

CA-00050541-001

06/05/2022

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

CA-00050541-002

06/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00050541-003

06/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00050541-004

06/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00050541-005

06/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00050541-006

06/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00050541-007

06/05/2022

The Complainant was employed in a part-time capacity as a food and beverage assistant from 10 September 2019 until his resignation on 29 May 2022. The Complainant alleges constructive dismissal and several breaches of his statutory rights. All complaints are denied by the Respondent.

Evidence of the Complainant (under oath)

The Complainant submitted that he received a written statement of terms of employment on commencement of employment with the hotel. Since receipt of that statement the Respondent made four changes to the Complainant’s terms of employment. These changes were not confirmed in writing to the Complainant as required by s 5 of the Terms of Employment (Information) Act 1994.  The Complainant submitted that the Respondent breached s 5 as follows:

(i)                  It failed to notify the Complainant of a change to the rostering of his hours of work. The Complainant was normally required and rostered to work weekends but was not rostered for two consecutive weekends, namely the 19 & 20 and the 26 & 27 February 2022. This occurred because the Respondent assumed the Complainant would sign a compromise agreement. The Respondent was obliged to advise the Complainant in writing of a change to his hours and they failed to do so.

(ii)                It is a requirement that an employee must provide a medical certificate if absent for three consecutive days. The Complainant submitted that he was absent on 22, 23 and 26 December 2021. By requiring the Complainant to provide a medical certificate for 3 non-consecutive days, the Respondent changed the terms of the Complainant’s employment. The Respondent failed to notify the Complainant in writing of this change to his terms of employment as required by law.

(iii)               The Complainant’s statement of employment includes an Equal Opportunity clause. The General Manager made a discriminatory comment at a meeting on 12 November 2021. This indicated that the Respondent was no longer following the Equal Opportunity clause within the statement of terms of employment. That change was not notified in writing to the Complainant contrary to the 1994 Act.

(iv)               It was the practice of the Respondent to notify staff of available working hours. In August or September 2021 the Respondent changed this practice and staff were required from that date to notify the Respondent of the hours they were available for work. This represented a change in management practice which was not notified to the Complainant in writing as required by the 1994 Act.

The Complainant submitted that he requested a meeting with Mr Peter White, Managing Director (the “MD”) on 12 November 2021. The purpose of the meeting was to request a pay rise. The MD stated that he was not in a position to give the Complainant a pay rise at that time as he had to prioritise those with families and mortgages. The Complainant submitted that this refusal constituted discrimination on grounds of family status and age. The Complainant was overlooked for a salary increase because he did not have a family of his own. Further, it was assumed that the Complainant did not have financial obligations, such as a mortgage, because of his age.

In January 2022 it came to the attention of the Complainant that one of his female colleagues “Ms X” (who the Complainant named in the hearing as a comparator for the purposes of his discrimination claims) was given a salary increase in August 2021 following a request by her manager to the MD on her behalf. The Complainant submitted that Ms X was employed in the same capacity as he was but that Ms X commenced employment some time before the Complainant. The Complainant’s role involved more responsibility compared to Ms X’s role. The Complainant submitted that the only difference between him and Ms X was their gender and that he was entitled to the same rate of pay as Ms X. The MD told the Complainant that Ms X was given an ad-hoc pay rise because she had asked first and that the budget did not allow for an increase to the Complainant’s pay in November 2021, but that the Complainant would be considered for an increase in January 2022. The Complainant submitted that it was discriminatory on grounds of gender that Ms X was given an ad-hoc increase whereas he had been refused same; that she had been considered for a promotion and he had not; and that she was on a higher rate of pay than he was though they were employed in the same role. The Complainant raised a grievance in relation to the meeting of 12 November 2021. As part of the outcome of that process, the Respondent acknowledged the discrepancy in pay and agreed to increase the Complainant’s hourly rate to the same hourly rate enjoyed by Ms X.  

The Complainant submitted that he was harassed on grounds of family status during the meeting of 12 November 2021 when the MD said that the Complainant’s parents should “pop out more children” as a way of obtaining more pay from the Respondent. The MD had commented on the fact that the Respondent had also employed the Complainant’s siblings while they were going through college.

The Complainant submitted that he was victimised for having raised a grievance with regards to the meeting of 12 November 2021. The Complainant felt ostracized and demeaned throughout the grievance process. The Complainant gave several examples of adverse treatment:

(i)                  Texts sent to his manager were escalated to HR unnecessarily.

(ii)                He was excluded from the evening team meeting on at least two occasions in December 2021.

(iii)               He was subjected to a biased grievance hearing with HR, as he was “brandished with Health and Safety Reports” before he could even articulate his grievance and “as a means of invalidating his concerns”. This was also an act of penalisation contrary to the provisions of the Safety, Health and Welfare at Work Act 2005.

(iv)               During the external investigation interview with the MD, the MD insinuated that the Complainant had raised health and safety concerns in the meeting on 12 November 2021 as a means of blackmailing the Respondent into giving him a pay rise.

(v)                 On one occasion he was scheduled for a lunch break on his own. The normal practice was to pair colleagues on breaks.

(vi)               Management told the Complainant to cease using his personal mobile phone while at work.

(vii)             In March 2022, during the external investigation, the Complainant was offered a ‘compromise agreement’. He refused to engage in any discussion on leaving the Respondent business as he wanted to continue in his employment. The Complainant submitted that he was then required to attend a meeting in relation to his absence back on 22, 23 and 26 December 2021. Further, the HR manager accused him of making things complicated when he wouldn’t agree to meet in person to discuss the absence. He agreed ultimately to meet with HR to discuss his absence but requested legal representation. HR advised that he could have a colleague present or a trade union representative, but that he if wanted to bring an external legal person, he would have to pay for that himself and that the Respondent could not afford this expense. This added to the Complainant’s stress levels. A general email was sent to all staff advising staff of the benefits they could avail of as employees. The Complainant submitted that he “felt he couldn’t avail of those benefits” having been told that he was an expense to the business in requesting legal representation for the meeting to discuss his absence.

The Complainant brought these matters to the attention of the external investigator. She advised that the above matters were outside of the Terms of Reference for the investigation and if he was to bring another complaint that would complicate things. The Complainant did bring his concerns to the attention of HR. Following this, his manager made a point of telling staff to ensure that the Complainant was to attend team meetings. However, during a team meeting, the manager referred to maintaining standards and adhering to health and safety requirements which the Complainant felt was “a dig” at him. The manager also took issue with the Complainant’s unavailability after 9pm on Sundays, but on realising that the Complainant did not normally work after that time, he apologised. The Complainant stated the atmosphere was not pleasant and his colleagues “would flock away from him”. The Complainant felt that his manager may have made staff aware of what was going on.

The Complainant submitted that everything was taking a toll on his mental health. He highlighted to HR that he was feeling stressed but no safeguards were put in place to protect him from stress during the grievance process. The Complainant submitted that he was asked at the outset of the external investigation process what he wanted, to which he replied to have his grievance investigated and to remain in the employment of the Respondent. However, during the external investigation process he was offered a compromise agreement. The Respondent wanted to “dismiss his personbefore his grievance was investigated”.

The Complainant submitted that he was treated less favourably that a full-time employee. As a part-time employee he was not considered for an ad-hoc pay rise. Further, he felt that his grievance would have been taken more seriously if he was a full-time employee.

In response to questions from the Adjudication Officer, the Complainant submitted that pay reviews occurred in January of each year depending on how the business was performing, and that there were no salary bands. The Complainant clarified that he couldn’t be sure if Ms X had been promoted to another position. The Complainant confirmed that Ms X also had no dependants or a mortgage, and that she also worked part-time. The Complainant confirmed that each of his complaints had been the subject of an internal and external investigation; that an outcome and recommendations had issued in respect of same; and that the Complainant resigned his position within 19 hours of the investigation report being issued to him, and before the Respondent had the opportunity to act on the findings of the investigation or to implement the recommendations in the investigation report. The Complainant confirmed that he had no issue with the external investigator or the investigation process and that he had no reason to believe that the external investigator would not conduct a proper investigation. The Complainant confirmed that all staff below supervisory level were advised to stop using their personal phones at work. The Complainant confirmed that he did not articulate to HR what additional supports he required during the grievance process. The Complainant confirmed that he worked no more than two weekends between January 2022 and 28 April 2022 due to either his unavailability or not been rostered for two weekends when he was considering the compromise agreement.

In cross-examination, the Complainant accepted that he received and signed his contract of employment on commencement of employment. The Complainant accepted that the change in management practice regarding availability of hours was implemented several months prior to his grievance and that he did not object to same until January 2022. The Complainant accepted that it was a flexible working arrangement. It was put to the Complainant that this had not changed and therefore no change to his terms and conditions had occurred. The Complainant disagreed and added that the change should have been notified to him in writing. The Complainant accepted that Ms X commenced employment prior to him but that their tenure was the same. The Complainant acknowledged that the Respondent corrected the pay disparity and backdated the increase. The Complainant submitted that the MD had stated that Ms X’s performance warranted an increase at the time, but the Complainant added that he was in fact more competent than Ms X.  The Complainant accepted that the Respondent acted on his complaints but added that he did not think they took them seriously. If they did take the grievances seriously the first grievance hearing would have been impartial and minutes of that meeting would have been accurate. The Complainant accepted he was given an opportunity to amend the minutes. The Complainant did not accept that his health and safety concerns were adequately addressed and that the reports of independent parties furnished by the Respondent pre-dated his concerns. The Complainant did not accept that the reports were given to him to allay his concerns: instead, his concerns should have been heard first before these reports were produced. The Complainant accepted that he had no concerns regarding the external investigation and that eventually all persons he named were interviewed. The Complainant accepted that he resigned within 19 hours of the investigation report being issued. The Complainant confirmed that he was asked to reconsider his resignation, but that he did not as he felt he could not return to his workplace. The Complainant confirmed he did not appeal the investigation findings. The Complainant accepted that he did not give the Respondent an opportunity to implement the recommendations contained within the investigation report but added that this was because of his experience to date. The Complainant accepted that he did not raise a formal grievance in relation to the adverse treatment he felt he was being subjected to because “he had no one to turn to”. The Complainant accepted that he had the contact details for the owners and had contacted them in relation to his initial grievance but that “he did not consider going back to them” and anyway he “did not think the outcome would be any different”. The Complainant accepted that the delay in the absence meeting was due the fact that he “didn’t feel the need for one” and due in part to his unavailability for work. The Complainant accepted that the purpose of the meeting was to discuss his refusal to come to work “indefinitely” due to concerns around Covid-19 and that it “hypothetically reasonable” for HR to want to meet with him to discuss this matter. It was put to the Complainant that as he only worked weekends, his absence on 22, 23 and 26 December 2021 constituted 3 consecutive days and therefore there was no change to the terms of employment. In reply the Complainant submitted “I accept that”. The Complainant accepted that the purpose of the meeting regarding his absence was clearly outlined, that he was offered representation when requested by him despite the meeting not being of a disciplinary nature and no sanction being issued. The Complainant acknowledged that he was rostered to take breaks on his own previously, but only when short staffed. The Complainant accepted that he was offered benefits like all others but “never tried to avail” of them. The Complainant accepted that he did not name a full-time comparator. In reply to the question on mitigation, the Complainant confirmed that he took up a summer internship on 8 June 2022 earning more than he had in his job with the Respondent. He was not available for work before then due to exams and was unfit for work after the internship. The Complainant accepted that his grievance was fully investigated by the external investigator, and that he left the employment of the hotel before the Respondent could act on the findings but this was because “he had lost all trust” in the Respondent. The Complainant accepted that the first time he advised the Respondent of his intention to refer a complaint to the WRC was November 2021 but that this was in relation to seeking mediation.

Evidence of Mr Peter White (under affirmation)

Mr White submitted that the Complainant came to see him on 12 November 2021 and requested a pay rise. The meeting lasted one hour and ended amicably. Mr White advised the Complainant that he would get a pay rise but not until January 2022. The Respondent had just done a review of competitor salaries and cost of living increases. This was the context in which the word ‘mortgages’ and ‘employees with families’ was said. Ms X got an out of cycle pay rise following a request for same from her manager who had made the case that Ms X had gone over and beyond what was expected of her. The pay rise had nothing to do with her gender.

A conversation took place in relation to the fact that other members of the Complainant’s family had worked for the Respondent. The Respondent acknowledged that he did say it was a pity that the Complainant’s parents did not have more children as they were “good people and it would have been nice to have more”.

At no time was it suggested to the Complainant that he should look for job opportunities elsewhere.

The Complainant also raised health and safety concerns in the meeting.

Mr White submitted that it was not unusual for staff to miss a team meeting.

In cross-examination, Mr White stated that he referenced the Complainant’s family after asking how the Complainant’s sister (a former employee) was getting on and that he had acknowledged making the comment and had committed as part of the outcome of the investigation to apologise to the Complainant for making the comment. It was put to Mr White that he said to the Complainant that he could go elsewhere if he was not happy. Mr White in reply submitted that he “didn’t recall saying that”. It was put to Mr White that the Complainant was not trying to blackmail him into a pay rise when he raised health and safety issues as an external Report had previously identified these issues. In reply, Mr White said he took the Complainant’s concerns seriously and escalated them to HR who had responsibility for health and safety. It was put to Mr White that the Complainant should have been treated equally to Ms X, and why was she not told to wait until January 2022 for a pay rise. Mr White responded that a pay rise was given to her because she had gone over and beyond what was expected of her and the budget permitted that at the time.

Evidence of Ms Fiona Diffney (under affirmation)

Ms Diffney stated that shortly after she commenced employment with the Respondent, she received an email from the owners of the business asking her to investigate a grievance they had received from the Complainant concerning a meeting he had with Mr White on 12 November 2021. Ms Diffney met with the Complainant to discuss his grievance. As part of that process she asked the Complainant what outcome he wanted. The Complainant stated he wanted a pay rise; training; and an apology from Mr White. Ms Diffney’s findings following the grievance hearing into the complaint was to: (i) give a pay rise; (ii) agree to training once enough F&B staff had been onboarded; and (iii) an apology would issue from Mr White for the comment he made concerning the Complainant’s parents. Subsequently, the Complainant accused Ms Diffney of having been biased in the handling of his grievance. The Respondent decided to appoint an external investigator to conduct a second grievance investigation. Ms Diffney had no further involvement in the matter.

Ms Diffney stated that there had been no changes to the Complainant’s terms and conditions of employment and that the practice of the Respondent texting available hours was stopped due to staff accepting the hours and then changing their minds.

When Ms Diffney learned of the Complainant’s resignation, she emailed him asking him to reconsider but he did not respond to her email. Further, he gave the Respondent no opportunity to implement the recommendations of the external investigator.

Ms Diffney explained that the delay in holding the meeting regarding the Complainant’s absences in December was due to his unavailability and reluctance to meet with her. It was not a disciplinary meeting and no sanction ever issued.

Ms Diffney submitted that gender, age, and family status is not considered when determining salary increases.

In cross-examination, Ms Diffney stated that there was no reason to issue a written notice of a change to terms and conditions as there had been no change to terms. In response to why she told the Complainant to pay for his own legal representative for the purposes of the absence meeting, Ms Diffney submitted that it was not a disciplinary meeting and it was outside of procedure to have a representative present at such a meeting. Ms Diffney confirmed she said the Complainant was complicating matters but this was said in relation to his refusal to meet her and not in relation to anything else. It was put to Ms Diffney that it was reasonable for the Complainant to perceive that comment as meaning he was complicating the entire process. In response to the question of why welfare supports were not put in place for the Complainant, Ms Diffney replied that she asked the Complainant what he wanted and he requested three things: all of which were acceded to. Ms Diffney confirmed that she did not act on the Complainant’s complaint that he was made to take lunch on his own on one occasion. Ms Diffney was asked if she was committed to restoring the relationship between the Complainant and the Respondent, to which she replied yes, and that if the Complainant had requested mediation, that would have been facilitated. Instead he requested a grievance investigation. Ms Diffney was asked: “had the hotel made a decision that I was no longer part of the future of the hotel?” to which Ms Diffney responded: “no, that is why we incurred the cost of an external investigator and tried to exhaust the grievance process”.

Evidence of Ms Jo Boles (under affirmation)

Ms Boyles submitted that she was engaged by the Respondent to conduct a grievance investigation. After interviewing the Complainant Ms Boles decided, based on the words used by the Complainant, to explore a settlement agreement. However, the Complainant after some time confirmed that this was not what he wanted. The Complainant agreed that Ms Boles should remain as the external investigator and conclude the investigation. Ms Boles submitted that the investigation took time due to the Complainant’s exams and diary clashes concerning other interviewees and her other professional commitments. The Complainant’s desired outcomes of the investigation were set out by him and all of these were agreed to as part of the investigation outcome, including an increase in pay backed dated to August 2021; payment for the shifts he missed while the compromise agreement was being explored; and mediation. Ms Boles also reviewed the Respondent’s internal grievance procedure as part of her engagement.

In cross-examination, it was put to Ms Boles that she was concerned not to deviate outside the terms of reference but she did by exploring a compromise agreement. Ms Boles stated that having listened to the Complainant she thought his concerns might be best addressed by exploring that option and that is why she suggested it to the Complainant. Ms Boles added that “the Respondentneeded you and felt you were an excellent worker”, and that the compromise agreement was not prompted by the Respondent. Ms Boles added “I was concerned to give him the option, but he said no and the investigation resumed as normal”. Ms Boles stated that the delay in concluding the investigation had nothing to do with the compromise agreement.

CA-00050541-001 - Terms of Employment (Information) Act, 1994 – Notification of changes

Law

Section 3(1) of the 1994 Act (as amended) (“the 1994 Act”) provides:

“An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say . . . (i) any terms or conditions relating to hours of work (including overtime) . . . (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave . . . . ”

Section 5 (1) of the 1994 Act provides:

“Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—(a) the day on which the change takes effect . . .  ” (emphasis added).

Findings

Section 5 of the 1994 Act only applies where there is a change in the particulars of the statement furnished by an employer under ss 3, 4 or 6.

Section 3 requires that the statement include particulars of the terms of the employee’s employment in relation to any terms or conditions relating to hours of work.

It is common case that the Complainant was issued with a written statement of terms of employment on 27 September 2019. The Complainant alleges that he was not notified of four changes to his written statement of terms of employment.

The Complainant submitted that he was not rostered to work for two successive weekends in February 2022. This was at a time when a compromise agreement had been proposed to the Complainant. The Complainant was then rostered for weekend duty as normal. The Complainant also submitted that it was the practice of the Respondent to notify staff of available working hours. In August or September 2021 the Respondent changed this practice and staff were required from that date to notify the Respondent of the hours they were available for work. According to the Complainant this represented a change in management practice which was not notified to the Complainant in writing as required by the 1994 Act.

The Complainant’s written statement of terms of employment provided as follows in relation to hours of work: “Your working hours will be dictated by the weekly roster. Your normal daily shift times will be two days’ over seven in a working week. We will endeavour to provide you with working hours each week; however, it is not possible to guarantee minimum hours as business levels dictate. Your working hours are regulated by and in accordance to the Organisation of Working Time Act 1997.”

I find that there was no change to the particulars of the Complainant’s written statement of terms of employment in relation to hours of work. Notwithstanding that the Complainant was not rostered to work for two weekends in February 2022, it remained the case that his hours of work were dictated by the weekly roster and that his shift times continued to be two days over seven. Further, changing the way either party advises of availability or availability of hours, did not result in a change to working hours or shift patterns (in any event this complaint relates to a period outside of the cognisable period). I find there was no requirement on the Respondent to make a notification in writing with respect to these two matters.

Section 3 requires that the statement include particulars of the terms of the employee’s employment in relation to incapacity for work due to sickness or injury and paid sick leave. The Complainant’s written statement of terms of employment provided as follows in relation sick leave: “Should you be absent from work for any reason you are required to contact your manager or another manager on duty, as soon as you are aware that you will be absent from work or at the latest an hour prior to work on the first day of absence. Text messages & voicemails are not sufficient. If you are absent for three consecutive days, you will be required to provide the Company with a medical certificate . . . .”

The Complainant submitted that he was absent on 22, 23 and 26 December 2021 and that he was required to provide a medical certificate for 3 non-consecutive days. In so requesting, the Respondent changed the terms of the Complainant’s employment. The Respondent submitted that as the Complainant worked weekends, the absence on 22, 23 and 26 December 2021 were three consecutive days with respect to the Complainant’s working roster that week.

I find that there was no change to the Complainant’s particulars of employment with respect to incapacity for work due to sickness or injury and paid sick leave. The Complainant was required to submit a medical certificate in line with his statement of terms of employment as he was absent for three of his consecutive working days. Therefore I find there was no requirement on the Respondent to make a notification in writing as required by s 5 of the 1994 Act in this respect.

The Complainant stated that the employer changed the equal opportunity clause of his statement of terms of employment. Section 3 of the 1994 Act does not require the employer to give particulars of the company’s equal opportunities policy. Section 5 of the 1994 Act only applies where there is a change in the particulars specified in s 3 of the 1994 Act.

I find that the Respondent did not breach s 5 of 1994 Act, and that the complaint under the 1994 Act is not well-founded.

CA-00050541-002 - Unfair Dismissals Act, 1977 – Constructive Dismissal

Law

The burden of proof is on the Complainant to establish that his resignation was not voluntary. There are two tests contained within the definition of constructive dismissal at s 1(b) of the Unfair Dismissal Act 1977 (as amended) (“the 1977 Act”). Either or both tests may be invoked by an employee. Either test may be applied by the Workplace Relations Commission (WRC).

Section 1 of the 1977 Act defines dismissal, which includes at (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 . . . .”

Where the contract is terminated by the employee, there is only a dismissal within the meaning of s (1)(b) of the 1977 Act if, “because of the conduct of the employer”, the employee was “entitled” to, or it was “reasonable” to terminate the contract of employment. Accordingly, the question of the dismissal must be considered under “entitlement” and/or “reasonableness”.

The contract test is used to assess entitlement to terminate the contract and was summarised in a UK Court of Appeal decision by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.C.R. 121 (cited in Berber v Dunnes Stores [2009] IESC 10) as 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.”

An employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract.

A general term is implied into every contract of employment that the employer will not impair the ‘trust and confidence’ of the employee. In Malik v Bank of Credit and Commerce International [1997] 3 All ER 1 (cited in Berber v Dunnes Stores [2009] IESC 10), Lord Stein stated:

“The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust or confidence between employer and employee”. In Malik the threshold was held to be high: it must “destroy or seriously damage” the trust between the parties. However, it is not essential that the employer be aware of the effect of the conduct. Nor that they intended such an effect”. 

Similarly in Joyce v Brothers of Charity Services [2009] ELR 328, the Employment Appeals Tribunal (EAT) held that the conduct “. . . cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”.

In Berber v Dunnes Stores Ltd [2009] IESC 10, it was held by the Supreme Court that in determining if there has been a breach in the implied contractual term of mutual trust and confidence, the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

The reasonableness test “. . . asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving . . . .” (Cedarglade Limited v Tina Hilban, UDD 1843). Thus it may be reasonable for an employee to terminate the contract because of the conduct of the employer even if the employer had adhered to the contractual terms.

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013).

It is well settled law that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning. In O’Gorman v Glen Tyre Company Ltd (UD2314/2010), the EAT noted:

“[I]t is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”. At a minimum the employee will be expected to utilise the company grievance procedure. In Conway v Ulster Bank Ltd (UD 474/1981), the EAT noted that “it is not for the Tribunal to say whether this procedure would have produced a decision more favourable . . . but it is possible”.

It is also well settled law that an employee may be justified in resigning without utilising the grievance procedure in some circumstances. In Mr O v An Employer (no. 2) [2005] 16 ELR 132, the court accepted “. . . that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”.  

Findings

Applying the test in Berber, I find that the Complainant has not discharged the burden of proof on him to establish that his resignation was not voluntary. I cannot find on the evidence that the Respondent engaged in conduct which resulted in a fundamental breach of the contract, or which indicated that the Respondent no longer intended to be bound by the terms of the contract. Nor do I find that the Respondent conducted its affairs in relation to the Complainant so unreasonably that the Complainant was justified in resigning.  The Complainant lodged a grievance. This was investigated by the HR Manager. The Complainant alleged that the HR Manager was biased. The Respondent then engaged an External Consultant to conduct a second investigation. The Complainant submitted that he had no issue with the external investigative process or the external investigator. Every outcome requested of the Complainant was acceded to by the Respondent. While I question the judgment of the External Investigator to propose a compromise agreement mid investigation without being prompted to do so by the Complainant, once the Complainant said no to that option, the investigation resumed with the Complainant’s consent to the same investigator leading the process. I further find that the Complainant acted unreasonably in not engaging in the appeals process before resigning. The Complainant submitted in evidence that he resigned within “19 hours” of the Report being issued to him. The Complainant submitted that he had no one to appeal to. I do not accept that. The Complainant had the contact details for the owners of the hotel and had contacted them previously. The onus is on the Complainant to exhaust all options before resigning. Therefore I find that the Complainant was not constructively dismissed.

CA-00050541-003; CA-00050541-004 & CA-00050541-006 - Employment Equality Act, 1998 – Discrimination, Harassment, Victimisation - Gender, Family Status & Age

The Employment Equality Act 1998 (as amended) (“the 1998 Act”) promotes equality in the workplace and provides protection against discrimination, harassment, and victimisation. An employer cannot discriminate against an employee in relation to several areas including conditions of employment. The Acts prohibit discrimination on nine grounds, including gender, family status and age. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator.

The 1998 Act defines harassment as unwanted conduct which is related to any of the nine discriminatory grounds.

An employee cannot be victimised for having made a complaint of discrimination to the employer.

Section 6(1) of the 1998 Acts provides:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) . . . .”

Section 6(2) of the 1998 Act provides:

“As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), . . . (c) that one has family status and the other does not (in this Act referred to as “the family status ground”), . . . (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) . . . .”

‘Family status’ “is defined in s 2 of the 1998 Act as meaning:

“[R]esponsibility—(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability”.

Section 19(1) of the 1998 Act provides:

“It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.”

Section 7(1) of the 1998 Act provides:

“Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if— (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work, (b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or (c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions”.

Section 14A(1) of the 1998 Act provides:

“(a) an employee (in this section referred to as "the victim") is harassed . . . either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is— (i) employed at that place or by the same employer, (ii) the victim’s employer . . . or (b) without prejudice to the generality of paragraph (a)— (i) such harassment has occurred, and (ii) either— (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.”

Section 14A(2) of the 1998 Act provides:

“If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing . . . the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.”

Section 14A(7) of the 1998 Act provides:

“(a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds . . . (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Section 74(2) of the 1998 provides:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer . . . .”

Section 85A(1) of the 1998 Act provides:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the Respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Therefore a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination.  In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

To determine whether the complainant has established a prima facie case a three-tier test is employed: (1) the complainant must establish that he is covered by the relevant discriminatory ground; (2) he must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

Findings

The Complainant alleged that he was treated less favourably on grounds of age, gender and family status when he was refused an out of cycle pay review (CA-00050541-003). The Complainant submits that he was discriminated on grounds of gender and denied equal pay to Ms X, a female colleague (CA-000505541-004). The Complainant also alleges that he was victimised for raising a complaint of discrimination and harassment (CA-00050541-006).

It was submitted by the Complainant that during his meeting with Mr White on 12 November 2022, Mr White stated he was not in a position to give the Complainant a pay rise at that time as he had to prioritise those with families and mortgages. The Respondent submitted that the context within which the reference to ‘those with families and mortgages’ was said was in relation to a salary review which had just been undertaken by the Respondent which had regard to the cost of living. The Complainant submitted that because he did not have a family of his own his exclusion from consideration for an out of cycle increase was discriminatory on grounds of family status. Further, it was assumed because of his age that he did not have a mortgage or the same financial responsibilities that his older work colleagues and the refusal of an out of cycle pay rise was therefore also discriminatory on grounds of age. The Complainant later learned that a few months previously a female colleague, Ms X, who worked in the same position as the Complainant was given an out of cycle pay review. As they both had the same tenure and did the same job, the Complainant submitted that it was discriminatory on grounds of gender to refuse him a similar pay review, and that he was entitled to receive equal pay to Ms X.

To determine whether the complainant has established a prima facie case a three-tier test is employed:

(1)    The complainant must establish that he is covered by the relevant discriminatory ground. I find that the Complainant is covered by the gender ground insofar as he is male and Ms X is female; ‘family status’ ground insofar as he has no dependents; and the age ground insofar as he is younger than many of his colleagues (which was not contested by the Respondent).

(2)    The Complainant must establish that the specific treatment alleged has actually occurred. It was accepted by Mr Whyte that he did reference staff with families and mortgages. It is common case that Ms X, a female, was given an out of cycle pay increase and the Complainant was not.

(3)    It must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

The Complainant named Ms X as a comparator. The Complainant confirmed to the hearing that Ms X has no mortgage; no dependents; and is a similar age to the Complainant. The only difference between them is their gender.

I accept the Respondent’s submission that the reference to families and those with mortgages was said in the context of explaining to the Complainant that the Respondent had just undertaken a salary review which considered the rise in the cost of living. I accept the evidence of the Respondent that those with families and mortgages are not treated more favourably when it comes to pay increases. It is common case that Ms X was considered for and given an out of cycle pay review notwithstanding that she is the same age as the Complainant; does not have a mortgage; and is of the same family status. I do not find that the refusal to consider the Complainant for a pay review until January 2022 was done because of the Complainant’s family status, gender, or age. Therefore, this element of the Complainant’s complaint of discrimination (discrimination on grounds of family status, gender, and age – CA-00050541-003) is not-well founded.

I accept the Respondent’s submission that the only reason Ms X was given a pay rise was because her manager made the case for her in August 2021; that the relevant manager approached Mr Whyte first to request that increase; and at that time the budget permitted the increase. I note that when the Complainant raised the issue of pay parity with Ms X, his hourly rate was brought in line with Ms X. Therefore, I find that the complaint in relation to equal pay (CA-00050541-004) is not well-founded.

The Complainant also alleged that he was harassed on grounds of family status when Mr Whyte stated that the Complainant’s parents should “pop out more children” as a way of obtaining more pay from the Respondent. Discrimination (harassment is a form of discrimination) on the 'family status ground' occurs where there is less favourable treatment of one person compared to another person because one person has family status (dependents) and the other does not. The Complainant alleges that this comment constituted harassment on grounds of his family status.  Harassment is any unwanted conduct that violates an employee’s dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment even if it was not intended as such. The Respondent acknowledged that a comment was made with respect to the Complainant’s parents. This was investigated and Mr White agreed to issue an apology to the Complainant. Mr White did not have an opportunity to do this however as the Complainant resigned his employment.

I prefer the evidence of the Complainant that the comment was made. I accept that the Complainant found the comment offensive. However, I find that the comment was not made on the grounds of the Complainant’s family status as defined in s 2 of the 1998 Act (i.e., that the Complainant himself had dependants or none). Therefore I find that this element of the complaint (CA-00050541-003) is not-well founded.

The Complainant submitted that he was victimised (CA-00050541-006) for having raised a grievance with regards to the meeting of 12 November 2021. The Complainant felt ostracized and demeaned throughout the grievance process. The Complainant gave several examples of alleged adverse treatment.

Having considered the examples of the alleged adverse treatment and the evidence given at the hearing by both the Complainant and the Respondent, I find that the Complainant has not established a prima facie case of victimisation. On the contrary, I find that the Complainant’s complaint of discrimination and harassment were taken seriously; fully investigated; that the Respondent directed the Complainant’s manager to ensure that the Complainant was notified of meetings when he complained of missing same; and that the Respondent did not engage in or permit any conduct that could be regarded as victimisation or penalisation for having complained of discrimination and harassment. Therefore, I find that this complaint (CA00050541-006) is not well-founded.

CA-00050541-005 - Safety, Health & Welfare at Work Act, 2005 – Penalisation

Law

Section 27(1) of the Safety, Health & Welfare at Work Act 2005 Act (as amended) (“the 2005 Act”) defines “penalisation” as including any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

Section 27(2) of the 2005 Act provides:

“Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.”

Section 27(3) provides that an employer:

“. . . shall not penalise or threaten penalisation against an employee for— (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

Section 28 of the 2005 provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 27 shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to take a specified course of action, or (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances.”

Findings

The 2005 Act prohibits employers from penalising employees for making complaints in respect of health and safety matters in the workplace. To succeed in a claim under the 2005 Act, the Complainant must demonstrate that he has (a) committed a protected act, (b) suffered a detriment within the meaning of section 27, and (c) can show a causal connection between (a) and (b).

It is common case that the Complainant made a complaint to the Respondent in relation to health and safety concerns. Therefore the Complainant has established that he committed a protected act within the meaning of s 27(3)(c) of the Act. However, I am not satisfied that the Complainant suffered detriment for having done so. The Complainant submitted that he was “brandished with Health and Safety Reports” before he could even articulate his grievance and “as a means of invalidating his concerns”. This, he submitted, was an act of penalisation contrary to the provisions of the 2005 Act. I accept the Respondent’s submission that the reports were produced at the grievance hearing to show the Complainant that an external report had found no health and safety concerns at the hotel and that this was done to allay his concerns. I do not accept that the producing of the reports was done to penalise the Complainant for having raised health and safety concerns. Therefore, I find that this complaint is not well-founded.

CA-00050541-007 - Protection of Employees (Part-Time Work) Act, 2001 – Less Favourable Treatment

Law

Section 9(1) of the Protection of Employees (Part-Time Work) Act 2001 (as amended)(“the 2002 Act”) Act provides:

“Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”

Section 9(2) of the 2001 Act provides:

“Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.”

Findings

The 2001 Act provides that a part-time employee cannot be treated in a less favourable manner than a full-time employee with respect to conditions of employment. The Complainant submitted that he was treated less favourably that a full-time employee on the basis that, as a part-time employee, he was not considered for an ad-hoc pay rise. Further, he felt that his grievance would have been taken more seriously if he was a full-time employee. I find that this complaint is not well-founded for the following reasons. The Complainant did not name a full-time comparator for the purposes of this complaint. Ms X was also a part-time employee and she was considered for and given an out of cycle increase. The Respondent took the Complainant’s grievance very seriously. Both an internal and external investigation was completed. There was no evidence proffered at the hearing that a full-time employee would have been treated more favourably than the Complainant in the grievance process.

CA-00050541-001

I decide that the complaint under the Terms of Employment Information Act 1994 is not well-founded.

CA-00050541-002

I decide that the complaint was not unfairly dismissed.

CA-00050541-003

I decide that this complaint under the Employment Equality Act 1998 is not well-founded.

CA-00050541-004

I decide that this complaint under the Employment Equality Act 1998 is not well-founded.

CA-00050541-005

I decide that the complaint under the Safety, Health & Welfare at Work Act, 2005 is not well-founded.

CA-00050541-006

I decide that this complaint under the Employment Equality Act 1998 is not well-founded.

CA-00050541-007

I decide that the complaint under the Protection of Employees (Part-Time Work) Act, 2001 is not well-founded.

Changes to terms of employment. Constructive dismissal. Discrimination. Harassment. Victimisation.