Worker

Employer

Anonymised Parties

A Grill Chef

A Food outlet

Representatives

  Denise Cassidy Solicitor

William Wall Peninsula

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-00053258-002

13/10/2022

The worker referred this dispute to the WRC in respect of his termination of employment. The worker commenced employment on the 18th of February 2022 as a Grill Chef/Counter Assistant and resigned on 18th of September 2022.   He has submitted a claim of constructive dismissal under the Industrial Relations act in respect of his dismissal which he submits occurred due to the unreasonable behaviour of the employer.  He submits that he was unfairly dismissed by virtue of a constructive unfair dismissal due to the conduct of his employer who decided to close the business while he himself went away on holidays. 

The worker claims that he had to leave his job as a Grill Chef/Counter Assistant after 7 months due to the behaviour of his employer.

The grounds stated that the “employer closed to go on holidays for 8 days and didn’t pay or give layoff documents”.

The worker has submitted a claim of constructive dismissal under the Industrial Relations act in respect of his dismissal which he submits occurred due to the unreasonable behaviour of the employer.  He submits that he was unfairly dismissed by virtue of a constructive unfair dismissal due to the conduct of his employer who decided to close the business while he himself went on holidays. 

The employer denies that they have behaved in such a way that would render the contract repudiated.

The employer upon receiving the complaint papers from the WRC, only then became aware of these alleged matters. At no stage during the employment was the employer made aware by the worker that there were issues as expressed in his claim papers.

The worker in his claim papers refers that he had to leave his job due to the behaviour of his employer. The grounds stated that the “employer closed to go on holidays for 8 days and didn’t pay or give layoff documents”.

The employer denies that they have behaved in such a way that would render the contract repudiated or leave the worker with no choice but to resign his employment.

On the basis that the Worker had less than 12 months service under section 2(1)(a) of the Unfair Dismissals Act, in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts and is, in essence, a claim of constructive dismissal. 

Section 1 of the Unfair Dismissals Act as amended defines constructive dismissal 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 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 rests with the worker in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

 “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 discharged from any further performance”.

The reasonableness test was expressed as

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

The worker advised the hearing that he had worked for the employer from February to September 2022 and stated that he had always had a good relationship with the employer until September when he discovered that the employer was closing the business for 8 days while he went away on holidays.   The worker stated that he only found out about this a couple of days before the employer was due to go on holidays.  The employer advised the hearing that he had placed a notice in the business over a month beforehand advising staff that they were closing for 8 days due to holidays.   The employer stated that this notice had been displayed for all staff to see in a public area and that it had been put up in July well in advance of the proposed closure in September.

The worker stated that he had not seen the notice and the first he heard about the 8-day closure was when the employer mentioned it to him in passing.    The worker stated that he asked the employer if he would be paid for these 8 days and the employer said he would check with his mother. The employer reverted to the worker and told him that he would be paid when the employer returned from his holidays.  

The worker in response to this stated that he told the employer that he could not survive for 2 weeks without pay.  He stated that he told the employer to sort it out or he would give in his notice.  

The employer stated that he had previously closed the business for a week had to pay all the staff for that week as he had not given them prior notice of the closure.  He told the hearing that he had then received advice to the effect that he should place a notice where staff could see it in advance of the proposed closure and that he would not have to pay them in advance of the holiday but that he could pay whoever was left after he returned from holidays.  The employer came across as very honest in his evidence.

The worker at the hearing stated that he had not been aware of the closure and had not seen the notice.  A witness for the employer Ms. M advised the hearing that she had been the person responsible for putting up the notice as she was asked to do so by the employer.  She stated that she had a conversation with the worker and that he had suggested to her that they could pretend not to have seen the notice and that the employer would then have to pay them while he was on holidays.     Ms. M had replied saying that she couldn’t pretend not to have seen it as she was the person tasked with putting up the notice.  She stated that the worker replied stating that he was going to pretend not to have seen the notice.

The worker in response to this evidence at the hearing stated that he did not recall having this conversation with Ms. M.

It is apparent from the evidence adduced that the employer was under the impression that once he had put up a notice, he would only have to pay those staff who remained when he returned from holidays.  It is clear from the evidence adduced that he told the worker that he would not be paid before the holidays but that he would be paid after they returned.  It is also clear that the worker was unhappy with this decision stating that he could not afford to be without pay for two weeks.

I note that the worker submitted other claims to the Commission in respect of hours worked and breaks etc, but he advised the hearing that he did not raise these as issues with the employer as he got on great with the employer and felt like part of the team.  The worker stated that he loved his job and stated that he had no issue until he discovered that the employer intended to go on holidays and leave him without pay for two weeks.  He stated that his made him feel like they had no regard for him after all of the effort he had put into the business.  The worker stated that he had given the place his heart and soul and that he was outraged to be treated like this.  The worker stated that he had always got on with the employer and his mother as they were straight forward people and he had respected that.  He stated that he had no choice but to leave when he did as he was treated so badly.

The worker did not provide any evidence of having raised a grievance and when asked if he had lodged a grievance stated that he didn’t get a chance as the employer was going on holiday for 8 days and the worker had left by the time he came back.

I note that the employer does have a handbook with a grievance procedure and that the worker did not lodge a complaint in accordance with the outlined procedure.

In considering this matter I note that the worker did not raise a grievance and did not utilise the internal procedures before making the decision to leave his employment.

Having carefully reviewed all the information I cannot find the Employer acted or behaved in a manner so as to leave the Worker with no option but to resign. Finally, the Worker did not avail of the Employer’s grievance procedure prior to resigning.   Accordingly, based on the above conclusions I do not recommend in favour of the worker.

On the basis of the above conclusions, I do not recommend in favour of the worker.