Complainant

Respondent

Parties

Declan  Martin

Campbell Catering Limited t/a Aramark Ireland (amended at the hearing)

Representatives

Greg Nolan Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036645-001

12/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00036645-002

12/06/2020

The Complaint was received by the Workplace Relations Commission on 12 June 2021.

Both parties were represented at the hearing which initially took place remotely but moved to face to face to ensure fair procedures applied to all.

The Complainant and his wife, Mrs. Theresa Martin, gave evidence on Affirmation

The Respondent had a number of witnesses but only Mr. Michael Glinka, Purchasing Manager and Mr. Gavin O’Shea, General Manager and HR Specialist, Ms. Teresa Barnacle along with Mr. Ronan O’Malley, Chef, all gave evidence on Affirmation.

Ms. Barnacle gave evidence of the correct name of the Respondent which was amended at the hearing. The correct name was further verified by Mr. O’Shea.

Submissions were exchanged by the parties.

The Complainant gave evidence that he commenced employment with the Respondent on 6 May 2015 until the date he was forced to resign his position due to the conduct of the Respondent on 12 June 2020.

It was agreed that his weekly gross wage amounted to a gross amount of €616 based on 39 hours per week.

CA-00036645-002 – Payment of Wages

The Complainant first outlined his payment of wages claim of €10,487.52 which he claims should have been paid to him on 6 February 2020 but due to the delay by the Respondent in dealing with his grievance he was forced to apply for social welfare. It was the Complainant’s evidence that the grievance ought to have been dealt with before the beginning of the Covid19 pandemic.

CA-00036645-001 – Constructive Dismissal

The Complainant gave evidence  about an allegation made against him that he failed to pay for food given to a delivery truck driver. Following this allegation by a colleague, the Complainant spoke with another colleague about what was said. During this conversation, Mr Glinka approached and inquired about the issue. The Complainant stated that at this stage, the General Manager, Mr O’Shea, demanded he come into his office and spoke to him in an aggressive manner, accusing him of stealing from the Respondent. As the Complainant turned to leave the office, he claimed that Mr O’Shea warned him he would never get a job again if he left. He described feeling shocked at the Respondent's treatment. The Complainant disputed the statements made by Mr O’Shea, Ms Connolly’s statement, who did not attend the hearing, and Mr Daly, who was also not in attendance.

On 18 December 2019, the Complainant emailed HR to outline his grievance. Between 18 and 24 December 2019, there was correspondence, including emails, phone calls, and text messages, along with a copy of the Dignity at Work Policy and arrangements for a meeting on 2 January 2020 in a hotel. A medical certificate was submitted by the Complainant covering up to 2 January 2020.

The Complainant met Ms Barnacle on 2 January 2020. Following this meeting, he texted on 7 January 2020 to inform Ms Barnacle of his decision to refer the matter to his solicitor. He stated that a letter was sent from his solicitor dated 8 January 2020, with a corresponding letter from the Respondent on the same date.

The Complainant gave evidence  about a meeting with Breda McDermott on 27 February 2020. His request for his wife’s presence was denied by the Respondent; instead, he was restricted to a work colleague, which he was reluctant to accept to avoid spreading the story.

Following this meeting, the Complainant had a conversation on 3 April 2020 with a lady whose name he couldn’t recall. He expressed his unhappiness and surprise at the contents of his colleagues' statements.

The Complainant was given the weekend to review the statements and notes of their meeting. However, needing more time to consult with his solicitor, he responded after the deadline. Breda McDermott informed him in a letter dated 7 April 2020 that the deadline had passed, and the investigation would proceed. Nevertheless, the Complainant sent a full set of replies by a letter dated 8 April 2020, which the Respondent noted as being after the deadline and therefore not considered.

On 24 April 2020, the Complainant received the outcome of his grievance investigation, which found his claims to be unfounded. Displeased with this, he appealed the decision. He explained his refusal to consider mediation, feeling “let down”.

He appealed on 1 May 2020, with Marie Burke, Regional Manager, appointed to hear the appeal. His disappointment was compounded when his wife was not allowed to testify, which he believed was crucial.

The notes of the appeal meeting were sent to the Complainant, with a request for response by the following Monday at 10 am. Unable to meet this deadline, his amendments were deemed late. He claimed that the timelines for review were never discussed or agreed upon with him.

On 29 May 2020, the outcome of the appeal was issued, finding it unsuccessful, and mediation was offered again. The Complainant felt he had not had a fair hearing and felt totally let down and disappointed. He repeated his sentiment of being “betrayed by the company” and expressed his inability to return to work after the events. He criticized the grievance process for not being timely.

Under cross-examination, the Complainant confirmed there was no mention of “stealing” in his email of 23 December 2019. He acknowledged receiving the Grievance Procedure from the Respondent and that his wife accompanied him to the meeting with the HR representative on 2 January 2020. When suggested that Ms Barnacle did not apologise, he disagreed.

The Complainant stated his decision to seek legal advice in January 2020 was due to “losing faith in Aramark” and the way he was treated, specifically citing his mistrust in Teresa Barnacle. It was noted that there was no mention of “stealing” or his colleague in the canteen in the letter from his solicitor on 8 January 2020, despite his claim that the accusation of stealing was the catalyst for the case.

He explained his preference for his wife’s presence at the investigation meetings over a work colleague, stating he did not want the story to spread and that his wife had overheard his discussion with Gavin O’Shea. He was questioned about refusing to attend a meeting when his wife was not allowed to take notes.

When asked why he did not accept the offer of mediation, the Complainant stated his dissatisfaction with attending the meeting alone.

After the appeal was not upheld and a second offer of mediation was rejected, the Complainant confirmed he submitted a complaint to the WRC instead. He reiterated his lost faith in the Respondent and dissatisfaction with the treatment. When asked if he had availed of all options, he conceded he had not.

In re-examination, he expressed his reasons for going to the WRC were the loss of trust and his tarnished character. He felt he was listened to but did not receive a fair appeal. He claimed he was pressured to respond quickly to emails and his submissions were frequently rejected for being late.

Regarding the email of 23 December 2019, he confirmed the detail he provided at the time was sufficient.

He confirmed being offered a work colleague for the investigation meeting in Tuam but chose not to. He also did not bring a written witness statement from his wife. When asked about the fairness of the grievance procedure, he stated, “They followed everything right,” indicating his dissatisfaction was with the outcome, not the process.

Mrs Martin gave evidence  about overhearing a conversation on 17 December 2019 between Mr O’Shea and her husband. She recalled Mr O’Shea repeatedly asking the Complainant about taking something and then accusing him in a loud and cross manner. She disconnected the call and was unable to reach him later.

She also recalled the phone call with Mr O’Shea the following day, during which she challenged his concern for her husband and accused him of shouting. She claimed her husband had paid for the product and criticized Mr O’Shea’s managerial conduct.

She gave evidence  that Ms Barnacle apologised to the Complainant and said he should not have been treated that way, describing her as very sincere.

Under cross-examination, Mrs Martin admitted she only heard part of the conversation and recalled her husband pleading to be heard by Mr O’Shea, confirming she heard shouting but no foul language.

Financial Loss

The Complainant outlined his financial loss from the date his ended his employment on 12 June 2020 to 2 September 2022 when he returned to work earning a reduced wage of €313 gross per week. It was his evidence that his ongoing financial loss equals €327 gross per week. The Complainant set out his efforts to seek employment which described as difficult due to the Covid19 lock down. He applied for 4 jobs in total with one application being successful. The Complainant gave evidence when questioned on his receipt of Illness Benefit from December 2019 until December 2021

The case of Berber -v- Dunnes Stores [2009] ELR 61 was relied upon by the Complainant in relation to the breakdown in trust and confidence in the Respondent.                                                             

CA-00036645-001 – Constructive Dismissal

Mr Ronan O’Malley, Chef, gave evidence  on behalf of the Respondent. He had a good relationship with the Complainant during their 2.5 years working together. Although Mr O'Malley wasn't present on the day of the incident in December 2019, he did ask the Complainant about the previous day's "drama." According to his evidence, the Complainant became aggressive when asked who told him and was advised by Mr O'Malley to speak with management. Mr O'Malley's handwritten statement was presented as evidence.

During cross-examination, Mr O'Malley stated he found it unusual that the Complainant would steal from his employer and denied the practice of giving food or drink to third parties.

Mr Michael Glinka gave evidence  about meeting the Complainant on 14 December 2019, describing him as very nervous and in poor condition. He took the Complainant to Mr O'Shea's office, where Mr O'Shea tried to assure the Complainant that no report of theft had been received against him. Despite this, the Complainant seemed determined in his belief. Under cross-examination, Mr Glinka confirmed the Complainant's extreme upset and the moderate tone of voices in the room, noting the Complainant's departure soon after.

Mr Gavin O'Shea gave evidence  that he was alerted by Mr Glinka to the Complainant's agitated state. During their meeting, the Complainant expressed his distress about being mocked in the kitchen and his desire to leave work. Mr O'Shea described the Complainant as very distressed, leading him to call the Complainant's wife, Mrs Martin, who seemed frustrated by the call. He denied hearing any grievances from Mrs Martin. Mr O'Shea spoke positively of the Complainant's work but stated the meeting was not for grievance purposes but for wellbeing, as advised by Mr Glinka.

Ms Teresa Barnacle gave evidence  about her involvement after being informed by Mr O'Shea. She contacted the Complainant, offering the Employee Assistance Scheme and her contact details. Their communication included missed calls, voicemails, and texts. She became aware of the Complainant's email on 23 December 2019, which had been sent to a UK HR address, and responded on 24 December, detailing the grievance procedure and arranging a meeting for 2 January 2020. In this meeting, she outlined the Complainant's options but denied apologising as she lacked full facts. On 8 January 2020, the Complainant advised he was that he was going to to consult his solicitor.

Ms Barnacle detailed her correspondence with the Complainant’s solicitor and the commencement of the investigation. She also described steps taken during the Complainant's sick leave, including offering the Employee Assistance Programme and Occupational Health visits.

Ms Barnacle was questioned on the Grievance and Sick Leave Policies.

In relation to financial loss, it was submitted that, even if successful, the Complainant's inability to work for two years meant his financial loss was limited to one month's pay under the legislation.

Submissions were made and the case of Conway v Ulster Bank, UD474/1981, McCormack v Dunnes Stores, UD 1421/2008 and Dunnes Stores and Karen Walsh UD/18/154

CA-00036645-002 – Payment of Wages

It was Ms Barnacle’s evidence that the Complainant was paid in accordance with the Sick Pay Policy.

CA-00036645-001 – Constructive Dismissal

This case was heard over three days , with the initial two hearings conducted remotely and the final one in Dublin, due to concerns of interference with the Complainant's evidence by another witness.

Section 1 (b) of the Unfair Dismissal Act 1977 -2015 defines constructive dismissal as arising:-

“dismissal”, in relation to an employee, means—

(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,”

Section 1 also defines key terms:

“contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing;”

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;”

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment”.

In this case the resignation letter came from the Complainant’s solicitor, dated 10 June 2020, stating:

“Accordingly, please note that our client is deeming his employment with you as being untenable.”

The letter continues; “He is claiming constructive unfair dismissal under the terms of the Unfair Dismissals Act 1977-2015 and his claim for same will be the subject to an application to the Workplace Relations Commission on expiration of his current certified of sick pay certificate”

A Complaint Form was received by the WRC on 12 June 2020.

The law relating to claim for constructive dismissal has developed two tests: the contract and the reasonableness test with the onus of proof resting with the Complainant.

The onus on an employee to prove constructive dismissal is summaries inRedmond on Dismissal Law (2017) at paragraph 19.14:

“There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981.  In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’”

The contract test was summarised by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.C.R. 121.:-

“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.”

The reasonableness test asks whether the employer “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with [it] any longer, [if so] the employee is justified in leaving”. The “reasonableness” was further considered by the EAT in Joyce v Brothers of Charity Services [2009] 20 E.L.R. 328 where it stated:-

“… [the tribunal] must be satisfied that the employee is either entitled or is acting reasonably in terminating the contract. In order for an employee to meet either of these criteria the conduct referred to in the act 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. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the recognition by the employee.

The Supreme Court in Berber -v- Dunnes Stores [2009] ELR 61 held: “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 Supreme Court also noted that “The term implied by law into the contract of employment is a mutual obligation that the employer and 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.”

There was no dispute that a grievance investigation and appeal took place in line with the Respondent’s policy. While the Complainant repeatedly maintained over two days of hearing that he had lost trust in the Respondent from the interaction with Mr. O’Shea in December 2019, he duly proceeded to engage in the Grievance Procedure up to and including an appeal. The Complainant maintained that he was unhappy with the outcome. When asked by the Respondent’s representative why he did not refer his grievance to the WRC under the Industrial Relations Act 1969, he accepted that he did not avail of all options available to him.

Upon close inspection of the Dignity at Work Policy provided in the Respondent’s submission, which was the policy provided to the Complainant in January 2020, there is no reference to the WRC. However, it is noted in the communications presented that there is a reference to a Grievance Procedure. Regardless, I must accept the evidence of the Complainant.

The Complainant was asked to give specific examples of what he believed to be unfair about the process upon inquiry on day three. It was his evidence then that the process was fair.

Consequently, I find that the Complainant failed in discharging the burden of the contract test.

In terms of the reasonableness test, which looks at both the conduct of the employer and employee, the Complainant, as a Chef and colleague, was described by Mr. O’Shea, Mr. Glinka, and Mr. O’Malley in very positive terms.

The Complainant gave evidence that his reputation had been damaged by the accusation of theft by this colleague, Mr. O’Malley, and Mr. O’Shea separately between 16 and 17 December 2019. Upon review of the evidence, this appears to be where the Complainant believes the Respondent acted unreasonably, leading to serious damage to the relationship of confidence and trust between them. While it is not the role of the WRC to reinvestigate the grievance, the evidence must be examined in order to determine whether words were said, or a decision made, amounting to unreasonable conduct resulting in a breach of the parties’ mutual trust and confidence.

Firstly, there was no finding of theft against the Complainant in the investigation report, but most importantly, no disciplinary action was taken against the Complainant. The first Mr. O’Shea, the General Manager, became aware of the issue the following day when the Complainant attended his office.

It's not clear exactly what was said in the meeting in Mr. O’Shea’s office, but all parties do agree the Complainant was very distressed. It is also agreed by the Complainant and Mr. O’Shea that the Complainant sought to resign from his job at that meeting. The Complainant says Mr. O’Shea accused him of stealing repeatedly, with Mrs. Martin giving similar evidence. It is noted that the evidence as to the exact words did differ from what the Complainant maintained in the internal investigation, where he stated, “Did you take the chips, the fucking chips? You took them.” Mrs. Martin confirmed she did not hear any foul language when cross-examined. This was denied by the Respondent’s witnesses, with both saying they had no background knowledge of the issue.

Based on the evidence before me and on the balance of probabilities, it was a heated and difficult meeting for all parties but particularly the Complainant, who was very upset and wanting to resign from his job. Without any context as to why the Complainant was agitated or knowing the background to the events leading up to their meeting, I find that Mr. O’Shea did ask if the Complainant stole the chips. However, this question was not an accusation. It was the Complainant who decided he was being accused of stealing. It was his own evidence that he went to the office and said to his colleague, “I am after being accused of stealing,” even before the General Manager met with him.

I find the actions of Mr. O’Shea consistent with his concern for the Complainant, particularly calling upon HR to reach out to the Complainant.

In terms of the action taken by Ms. Barnacle in the days leading up to Christmas 2019 and beyond, I find she acted with the utmost professionalism and went above and beyond her call of duty. She acted without delay and took the time to meet with the Complainant in a location near his home on the first working day of 2020 when a letter or a phone call would have served the same purpose.

Consequently, I find the Complainant, albeit upset on 16 and 17 December 2019, made the decision that irrespective of what action the Respondent took following these days, he was not going to be satisfied with the outcome based on his own admission that he had lost trust in the Company by 8 January 2020.

Of particular note was his evidence following the meeting with Ms. Barnacle on 2 January 2020; both he and his wife described the meeting in positive terms and while it was disputed whether she apologized or not, the Complainant did appear to take comfort from this. Despite this, the Complainant decided to refer the matter to his solicitor, saying under cross-examination that he had “lost my trust in Aramark” in light of the “way he had been treated and accused of stealing”.

It is further noted that this is a large company with an entirely separate HR department and layered management structure, which did not work in the same location as the Complainant. He did not identify any bias or prejudice in any way with the grievance investigation and appeal.

Therefore, it can only be concluded that the Complainant’s conclusion on 8 January 2020 was entirely premature, and it was he, not the Respondent, who acted unreasonably.

Consequently, I find the Complainant was not unfairly dismissed.

CA-00036645-002 – Payment of Wages

The Respondent provided its Sick Pay Policy, which includes a sliding scale for sick days earned based on service length. The Complainant, having been employed for over 2.5 years, was entitled to the maximum of 20 days' sick leave, which he utilised. In March 2020, during the investigation, he inquired about the status of his sick pay with Ms. Barnacle and learned that his 20 paid sick days had been exhausted.

The Complainant argued he should have been paid for his entire sick leave from December 2019 to June 2020, coinciding with the grievance investigation. However, I do not accept this argument. The Respondent promptly followed up with the Complainant in December 2019 and met him on 2 January 2020. The investigation and subsequent appeal were completed by 29 May 2020. The Complainant paradoxically criticised the pace of the investigation and claimed insufficient time for reviewing minutes and responding. Additionally, he cancelled the grievance meeting set for 20 February 2020, and did not attend the rescheduled meeting on 26 February 2020, due to his refusal to comply with the policy limiting a work colleague or Trade Union representative present with him. Despite initially agreeing to a phone meeting on 19 March 2020, he changed his mind by 3 April 2020. Even when written responses were accommodated, he missed those deadlines, citing unsuitability of the format. Two more deadlines were missed in May 2020.

It is important to note, this investigation occurred at the onset of the Covid-19 pandemic, with witnesses working in a hospital restaurant serving essential front-line workers.

It is contradictory for the Complainant to criticise the Respondent for time it took to carry out the investigation while being responsible for delays himself.

In conclusion, there is no legal basis under the Payment of Wages Act 1991 to allow the Complainant sick pay beyond the contractual 20 days during the investigation of his grievance.

CA-00036645-001 – Constructive Dismissal

I find the complainant was not unfairly dismissed.

CA-00036645-002 – Payment of Wages

I find the complaint is not well founded.