Complainant

Respondent

Parties

Aishling  Tyrrell

Entertainment Enterprises Group

Complainant

Respondent

 Parties

Aishling Tyrrell

Entertainment Enterprises Group

Representatives

Barry Crushell Crushell & Co Solicitors/Rory Traynor BL

Cait Lynch IBEC

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-00046193-001

14/09/2021

This is a claim for constructive dismissal.

The Respondent is an entertainment and restaurant group.

The Complainant commenced work with the Group as a restaurant manager in May 2012 and was promoted to General Manager of TGI Fridays and Dantes Pizza restaurant at Liffey Valley on a salary of €44,0000 per year.

On or about August 2019 the Complainant alleged that her area manager instructed her by email not to serve customers who were from the Travelling Community.

The Respondent totally denies that allegation and stated that the manager instructed the General Manager for the safety of both staff and customers not to serve customers who had previously caused trouble at the restaurant.

The Complainant stated that arising from her objection and refusal to implement discriminatory practices she was ignored and left on temporary lay-off, arising from lockdowns, much longer than other colleagues, who had been offered alternative roles or considered for redundancy.

The Respondent stated that the Complainant was placed on temporary lay-off like most employees arising from COVID 19 health regulations and was not treated less favourably to others. The Company made operational decisions based on objective criteria totally unrelated to any prior complaints or differences between a subordinate and their manager.

The Complainant stated that the failure of the Company to communicate with her while she was on lay-off and the ongoing financial pressures of having no indication of when she might be offered work forced her to resign on the 2nd of September 2019.The Complainant has returned to third level education.

The Complainant alleges that she was asked not to serve customers from the Travelling Community, and she refused to follow this unlawful request. Arising from this position she was treated less favourably than others during the COVID lay-off by being left longer on lay-off than others.

On or about 27th of May 2020 the Complainant was laid off arising from the COVID public health regulations.

Soon after the Complainant became aware that other staff members were offered alternative roles in a sister restaurant/café.

In July and August 2020 restaurants were beginning to reopen and other colleagues were either brought back to their original positions or to alternative roles.

The Complainant believes that she was treated less favourably to other colleagues because she resisted the implementation of a discriminatory policy.

The Complainant repeatedly contacted senior management about when she might be returning to work and was provided with no assurances whatsoever.

The Complainant alleged that she became aware that another General Manager had been given the keys of her restaurant.  That General Manager was also given access to the Complainant’s emails and sent emails from her work account.

It is alleged that the Complainant had no other alternative but to leave her employment on the 2nd of September 2021.

The Complainant alleged that she was kept on long term layoff more than others arising from the differences she had with her immediate manager about operating a discriminatory practice. The Complainant alleged that there never was any intention to bring her back to her prior role

The area manager was not discussing any ethnic group, rather in her email she was referring to customers who were challenging both to other customers and staff members.

The area manager did take on board what the Complainant stated and undertook to arrange training about dealing with difficult customers and how to refuse service as appropriate.

That training was put in place. That training made clear that you cannot discriminate on any of the prescribed grounds. However, that must be distinguished from the right to refuse service where a customer had engaged in anti-social behaviour and was proving to be challenging in how the customer was interacting with staff or with other customers.

It was the Complainant who reported an incident on or about the 19th of November 2019 and she specifically named customers who were members of the travelling community.

From March 2020 COVID had a devastating impact on all restaurants. This ultimately entailed layoffs.

It is not true that the Respondent failed to respond to the Complainant’s queries particularly about payment of the wage subsidy when an individual was lay off. The Respondent opened several emails to show this to be the case.

On the 13th of August 2021 the Complainant wrote to the Operations Manager detailing her issues with the Area Manager about an incident that occurred about 2 years previously.

The Complainant alleged that she was being penalised for objecting to a discriminatory practice.

The Operations Manager then requested to meet to discuss the Complainant’s concerns. That was not acted upon by the Complainant. Again, the Manager asked to meet to discuss her concerns and asked her not to resign. The Operations Manager stated that the complaints now being brought to her attention would be investigated. Also, the Grievance and Dignity at Work policies were sent to the Complainant. That letter was received by the Complainant on the 8th of September 2021.

On the 20th of September 2021 the Operations Manager wrote to the Complainant and arising from the fact that the Complainant did not act on the request to meet , to formalise a grievance or to reconsider her resignation the Manager accepted the employees resignation.

The Complainant signed a contract on or about the 20th of August 2018. That contract stated that the contract and the operations handbook formed part of the contract

The discriminatory email referred to by the Complainant dated the 24th of August 2019 contained the following:

“Following on our recent issues with keyed in transactions, walk outs and unsociable behaviour from members of the Travelling Community all managers should be aware that going forward we will be exercising our right to refuse service in hope we will fully eliminate all of the issues mentioned above…many of the stores have regular guests from Travelling Community that have never caused any issues and therefore I am happy for the General Manager/Assistant General Manager to make the call on who these guests are and continue our service for those regular guests.”

There are text messages opened from managers who were not at the hearing about an incident that occurred were it is alleged that members of the traveller community were refused; although, tables were free, and the reason provided to these potential customers was the restaurant was booked up.

There are also text messages from the Complainant to her manager dated the 7th of September 2019 where a walkout occurred which means the customers failed to pay and that it had been reported to the Garda.

There was an alleged incident on the 9th of September 2019 where travellers were refused, and they were not known to have caused any trouble previously.  The reason provided to these guests for refusing their custom was that the restaurant was booked up, when in fact it could have allegedly accommodated them.

On the 18th of November 2019 the Complainant texted her manager and stated that she and her team are uncomfortable about refusing all members of the travelling community.

However, on that date there was an incident where a security guard was confronted, and another walkout had occurred. An email message dated 18th of November 2019 from the area manager is referenced which stated that:

“Potential wall out

We should not be letting members of travelling community in and service should be refused as they are causing issues. Hope Security guy redacted is ok. Please download cctv and call garda.”

The Complainant received training on reasons for refusing service that did not provide for any blanket discriminatory ban on any group and referred to valid legal reasons for refusing to serve such as previous disorderly behaviour. The training specifically referred to the Equal Status Act and stated what that meant relating to the discriminatory grounds.

The email of the 18h of November 2019 from the Complainant’s manager was in response to the Complainant’s report where she referred to travellers. That referred to a walkout by it is alleged customers who are members of the travelling community.

The meaning of that email can be read in two ways, that it refers to all travellers and they should not be let into the restaurant or arising from these guests causing trouble they should not be let in. At face value there is a problem in the email from the area manager as she specifically stated that:

“we should not be letting members of the travelling community in and service should be refuse service as they are causing issues.” ( email 18th November 2019)

Why are difficult customers referred to as members of the travelling community-that at face value is prejudicial when compared to other ethnic groups if they were difficult customers?

On or about the 27th of May 2020 the Complainant was placed on lay-off.

There were administrative difficulties in moving from one COVID payment to the PUP payment.

Arising from lockdown on the 5th of June 2020 the Complainant was formally notified by the Compliance Officer that she was being placed on a period of temporary lay-off. She had been on the temporary wage subsidy scheme. However, due to the uncertainty facing the business it had no option but to proceed to temporary lay-off along with others.

On the 16th of June 2020 another letter was sent to her about how to claim benefit from social welfare.

On the 22nd of June 2020 the Compliance Officer writes to the Complainant and explained that there had been difficulties caused arising from the transition from the temporary wage scheme to the pandemic unemployment payment.

On the 30th of June 2020 the Compliance Officer sends the Complainant an email which explains that no subsidy has been claimed for her for the month of June 2020.

In an email dated the 31st of May 2021 the Operations Manager wrote to the Complainant stating that they had not decided yet when to open Liffey Valley.

On the 7th of August 2021 the Complainant emails the Operations Manager as follows:

“Could you give me an update on when you think Liffey Valley will be reopening, please, as all my managers and some TMs are working elsewhere in the company?

The Complainant opened an Irish Times report that stated that TGI restaurant at Liffey Valley could have stayed opened during periods when it was permitted to do so under Covid regulations and didn’t. That report is dated the 13th of December 2021.

On the 13th of August 2021 the Complainant writes to the Operations manager and raised the issue about excluding travellers from the restaurant the previous November 2019 and that she believed that she was being penalised for raising that issue. The Complainant stated that other colleagues had been accommodated with new roles other than her and in her view, she attributed this to her stand about excluding members from the travelling community from the restaurant.

[The Complainant wrote to the Head of Operations on or about 13th of August 2021, her letter is dated 13th of August 2020 in error, it should have been dated 2021. However, in the text of the letter she states:

“and the next time you initiated contact was two days before Christmas 2020”]

By registered post on the 30th of August 2021 the Head of Operations responds to the Complainant as follows:

“Can I suggest we meet next Wednesday 8th of September at 11.am…?

If the above timing is not suitable, my contact details are unchanged and you should feel free to either email…. or call mobile….”

The Complainant made no contact with her manager.

In her submission and oral testimony, the Complainant stated that she wrote many times to the Head of Operations about her position. That is disputed by the Respondent.

On the 2nd of September 2021 the Complainant wrote to the Head of Operations and stated she was resigning as she found the working environment leading up to the pandemic toxic. She had been punished in her eyes over the last 18 months for objecting to an abhorrent policy to impose a blanket ban on members from the travelling community.

On the 6th of September 2021 the Head of Operations wrote to the Complainant asking her to reconsider her resignation.  In her letter the Head of Operations stated that she wanted to meet her as they had known one another for a long time. She had commenced to investigate the allegations that she had raised in her most recent correspondence. She asked her to reconsider her resignation and referred her to the formal grievance policy. The Head of Operations stated that if they were able to meet, she was confident that any grievances she had could be amicably resolved.

As no reply was received from the Complainant the Head of Operations wrote on the 20th of September 2021 and stated that as no contact had been made with her and adequate time had been given for her to reconsider her decision to resign, she would now contact payroll to process the necessary paperwork and entitlements arising from her resignation.

The Area Manager in sworn evidence stated that she never instructed the Complainant to ban members of the travelling community from her restaurant. The email opened to the tribunal related to an incident where travellers walked out of the restaurant and a confrontation with a security officer had taken place. The Complainant referenced travellers and it was in the context of these guests’ causing problems that she referred to this group.

The Chief Operating Officer gave sworn evidence about the number of anti-social issues and challenges that had arisen at the Liffey Valley restaurant.  Some of the challenges being faced could lead to the loss of a licence to sell alcohol. There were fights in the car park along with other disruptive behaviour. There is no policy against travellers. The complaint made referencing what an area manager is alleged to have said occurred 2 years previously.  The interpretation given to that email exchange must be seen in the report that the Complainant had raised about a walk out.

The area manager who allegedly held a gripe/animus against the Complainant left the group in July 2020. The senior manager who took on her responsibilities would not have any animus against the Complainant.

The Complainant has not detailed the very restricted nature of trading during lockdown.  In July 2020 there was a restricted opening. In September 2020 the Industry went back into lockdown.  At the end of October 2020, the restaurants opened again. The Group planned to open Liffey Valley in July/August 2021. It was planned to open with a kitchen manager. There was legislation in place suspending redundancies where temporary lay-off had taken place. Arising from a very serious staff shortage across the group and the impact of the shutdown on cash flow, there were significant financial and operational challenges to overcome. The Complainant was not penalised during the period. She was the General Manager of Liffey Valley and the restaurant had remained closed.

There were redeployments made during the crisis and those decisions were made objectively.  Two managers with young children requested to return on a reduced salary and they were accommodated on a reduced salary. Another GM was redeployed as that person was assessed to be more suitable for the vacancy that had arisen.  The Complainant had less experience to one of the colleagues she viewed as being more favourably treated

Each restaurant is evaluated in terms of responsibility and turnover, that in turn determines the salary and who should be redeployed based on their role and salary. While Ms Tyrell at the hearing spoke about an alternative role, she particularly was asking when Liffey Valley restaurant would open and that is a question that could not be answered. The Chief Operating Officer was unaware of her continuing grievance.

The Area Manager in June 2020 was made redundant to yield a cost saving when there was little line of sight about the future.

The Head of Operations stated that she had never discussed travellers with the Complainant. When the Complainant contacted her and detailed her issues, she (Head of Operations) wished to meet to resolve her perceived grievances. She asked the Complainant to reconsider her decision to resign. She referred the Complainant to the company’s grievance policy.

The facts in this case are that some disagreement occurred between a line manager and her superior about members of the travelling community. However, that was in the context of a walk out. Those incidents occurred nearly 2 years before, when the Complainant formally referred to them again in a letter to the Head of Operations.

The Complainant in pursuing a complaint for constructive dismissal must justify her decision to leave the employment arising from a fundamental breach in her contract and/or the unreasonable behaviour of their employer. The onus is on her to prove that is so.

In the context of the Pandemic, temporary lay-off is not a contractual breach and there is no case made out that the Complainant was looking for redundancy, rather that she was unreasonably left on lay-off. There is little causal evidence to show that the layoff was a convenient guise to punish her for her stand against a discriminatory policy. However, a delay of 2 years in raising and escalating the matter does create questions about the credibility of her case.

There are competing explanations to explain the lengthy layoff. The obvious one being that the restaurant was closed arising from lockdown and the financial/operational challenges being faced by the Company.

However, the Complainant also relied on the fact that other colleagues, were treated more favourably. On the evidence that is so. However, there are credible explanations provided for those decisions and no evidence to show that the Complainant was being punished. That is particularly so as the manager who she believed held a gripe or animus against her; had in fact been made redundant in July 2020. It is less credible to argue that other managers less involved in that incident would want to penalise her who were not involved in that exchange and about that an incident that occurred in late 2019.

Finally, the Complainant on two occasions failed to engage with the Company and her manager when on the face of it a very genuine attempt was made to resolve her grievance.

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.

In a wrongful dismissal action in 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.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee when assessing if constructive dismissal had 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 facts show that there is a delay of nearly 2 years prior to escalating the complaint of discriminatory practices at the restaurant.

The alleged disagreement between the Complainant and her then manager took place 2 years previously and that manager left the Group in July 2020.

The manager is placed on lay-off due to lockdown on or about June 2020.

There is very little evidence in fact none to show that any senior manager continuing to work in the Group would have had an animus against the Complainant.

The Complainant was treated less favourably to some other managers who were redeployed; that is a grievance that should be raised. However, credible explanations were provided for that difference in treatment. On the face of the facts there is no link between this grievance and how it was linked on the balance of probabilities to an issue that occurred in later 2019.  That opportunity to raise a grievance and to engage with the Head of Operations to resolve the delay in offering the Complainant some work was not availed of by the Complainant.

The Complainant’s restaurant was closed and at the time of her resignation was closed.

Based on these facts I do not find for the Complainant that a fundamental contractual breach occurred as the temporary lay-off was directly linked to lockdown and the challenges of re-opening. I do not find that the employer acted unreasonably as at the time of resignation and since July 2020 it could not be said that any senior manager would have had an animus against the Complainant. The Complainant failed to engage with the Head of Operations or to initiate the grievance procedure even though requested formally to do so.  On these facts I find that the Complainant was not unfairly dismissed.

Based on the facts I do not find for the Complainant that a fundamental contractual breach occurred as the temporary lay-off was directly linked to lockdown and the challenges of re-opening. I do not find that the employer acted unreasonably as at the time of resignation and since July 2020 it could not be said that any senior manager would have had an animus against the Complainant. The matters raised by the Complainant about a discriminatory policy are serious; however, they should have been escalated 2 years previously. The Complainant failed to engage with the Head of Operations or to initiate the grievance procedure even though requested formally to do so. The Head of Operations did initiate an investigation into the allegations of a discriminatory policy and no corroborating evidence to support those allegations was found.  The fact is other colleagues were treated more favourably; however, that does not mean that those decisions were made to punish her. There are compelling explanations why other colleagues were facilitated and she was not. On these facts I find that the Complainant was not unfairly dismissed and that she resigned from her employment.

Constructive Dismissal