Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

  Self

Wei Wu Bourke

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00047289-001

22/11/2021

The Complainant alleges that he was constructively dismissed from his employment with the Respondent. The Respondent states that the Complainant resigned his position.

The Complainant commenced working for the Respondent on the 15th of August 2021. His employment ended on the 5th of November 2021. The Complainant is alleging that he was constructively dismissed from his employment. The Complainant stated that there were several incidents with the third chef who assaulted him on a number of occasions. The Complainant put in a request for a transfer due to the behaviour of that individual, but that request was refused. On one occasion the Head Chef asked him what had happened, and he explained the situation to him. The matter with escalated and both parties were brought into a meeting and asked to explain what had happened.  The complainant felt that the Respondent was not taking the matter seriously as no action report or incident report was done. The Complainant knows that incident reports are done because on one occasion when he fell down the stairs, he had to fill out one. That was in October 2021. Following on from the incident the Complainant’s hours were cut to two days a week. Prior to the incident he was working five or six days a week. It was then that the Complainant decided to leave. He emailed HR and explained what happened. He then called HR. Unfortunately, nothing came of that. He resigned.

The Complainant hasn’t worked since he resigned. He has been unwell and has no interest in working at the moment. He said “I don’t know what I want to do”.

The Respondent read out their statement into evidence. It can be summarised as follows:

 The Respondent believes the complaint is not valid and deliberately misrepresents the context and sequence of events before the Complainant resigned from his role. No grievance or complaint was ever raised with the company before he resigned. The company was not aware of the full details of the incident between the Complainant and Mr. M because no information was given when asked about i. The request for a departmental transfer happened prior to the incident and no request was received from the Complainant following the incident. The Complainant’s continued lateness in late October prior to his resignation was a serious concern for the Respondent and the Complainant was informed directly by the HR department that his performance would be reviewed formally following the return of Mr. K who was on annual leave. It is the Respondent’s belief that the Complainant resigned his role in anticipation of not passing his probationary review due to his continued lateness before and after the incident with Mr. M.

In early October and again in mid-October Mr. K had a job chat with the Complainant in relation to his absenteeism and his timekeeping. It was made clear that future lateness or absenteeism would result in a formal review and his attendance and suitability for his role would be reviewed. Several other topics were discussed about the Complainant continuing his future plans and the possibility of changing roles and/or departments. It was explained to him that a transfer might be possible in the future, but a recruitment process would need to take place to fill his current role before this could be authorised. During this meeting the Complainant expressed an interest in studying an online course and he asked for reduced hours when it was possible so that he could start his course. This was agreed in principle at the meeting.

The Complainant never raised the issue of an incident which took place with another employee. The information that the Respondent has in relation to this incident is still very vague, but it is understood that the Complainant may have been the aggressor and that the instant was in relation to monies owed. It wasn't until weeks after the alleged incident that the Respondent learned of an alleged physical assault. When the Respondent learned of the assault, Mr. K met with the Complainant and Mr M to discuss the matter but neither party was forthcoming with a motive or circumstances behind the incident. The Respondent then attempted to mediate the matter between the two. During that meeting there was no mention of a physical altercation. Neither party would provide details of what happened or why it happened. Both individuals were asked if they wanted to make a formal grievance or complaint, and both said “no”. After the meeting, Mr M and the Complainant agreed to shake hands and to leave the incident behind them. Following on from that the Complainant continued to arrive for work late. On Wednesday October 27th, he was 3. 45 hours late with no explanation. On Friday 29th of October he was 49 minutes late with no explanation. On Sunday the 31st of October he was 35 minutes late with no explanation. At that time. Mr. K was on annual leave, but it was explained to the Complainant that his constant absenteeism would be formally dealt with in line with the companies probation review by the senior HR executive. Mr. K was informed, and a performance review was to be scheduled for the week commencing 8th November. A time and place had not yet been set for that meeting when the complaint resigned his position.

The claim is one of constructive Dismissal.

Section 1 of the Unfair Dismissal Act defines constructive dismissal, and that definition is appliable to constructive dismissals under the Industrial relations Acts. It is defined as:

“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 the 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”

The burden of proof, which is a very high one, lies on the Complainant. He must show that his resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to him unless he can show that said remedies are unfair”

Having considered the evidence of the Complainant and the Respondent I am satisfied that the Complainant resigned his position in the knowledge that his employment was going to be terminated due to his consistent lateness. The Respondent’s evidence in that regard was compelling. The Complainant was given several opportunities to set out the facts surrounding his alleged assault, but he failed and/or refused to do so. I am not satisfied that the Complainant did get in touch with HR in relation to the issue. I found is evidence in that regard to be vague and not credible.

The Complainant left his employment in December 2021. I am not aware of what he has been doing since that date as the Complainant stated that he has no interest in working at the moment. He did, however spend some time in hospital, due to mental health issues.

In all of the circumstances I am not making any recommendation.

The complaint fails. In all of the circumstances I am not making a recommendation.