Complainant

Respondent

Parties

Kacie Roberts

Smorgs ROI Management Ltd t/a Travelodge Ireland

Complainant

Respondent

Representatives

Self-Represented

Niamh Ní Cheallaigh of 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-00061619-001

18/02/2024

The issue in contention was the alleged Constructive Dismissal of the Complainant from a North Dublin Hotel. The employment as a Housekeeper began on the 21st March 2022 and ended on the 9th December 2023.

The rate of pay was stated to have been €497.67 for a 40-hour week.

The Complainant gave a substantial Oral testimony supported by a detailed complaint form. She was an articulate witness and her testimony was obviously heartfelt.

In essence her case was that her immediate Supervisor, Ms BC, had subjected her to a pattern of aggressive and relentless criticism in regard to her work. Ms BC was Romanian as were all her immediate colleagues. The Romanian colleagues appeared to have a much more relaxed work regime.

The Complainant suffered from anaemia and on the 4th October 2023 became very unwell. She requested to be allowed go home early.  This was aggressively refused by Ms BC. The Complainant then raised the issue with the Hotel Manager, Mr LK. At a meeting on the 5th with Mr LK the Complainant outlined her complaints. It was not a satisfactory response. Mr LK did not believe that things between Ms BC and the Complainant were as bad as portrayed. The Complainant then requested that her issues be taken up at Head Office level.

A meeting with Head Office HR Manager, Ms RB, took place on the 11th October 2023. The Complainant stated that she felt an “Informal” meeting with Ms BC and Mr LK would not be suitable as they both were unsupportive. Ms RB then outlined that a “Formal” Written complaint would be required. This was submitted on or about the 18th October. Ms. CD of TIFCO HR was appointed to deal with the formal Grievance. A meeting was scheduled for the 23rd October 2023.

On the 18th October an unpleasant exchange took place with Ms BC regarding the entire issue. The following day, the 19th the Complainant as asked to clean a Room after 17:00(her normal finishing time) as another colleague had to leave early. The Complainant refused as normal swaps etc between colleagues had not been arranged /mentioned. The Manger, Mr LK and Front of House Manager then intervened. An aggressive meeting took place in Mr LK’s Office that resulted in the Complainant getting emotional. She left the Hotel and sought medical advice. She submitted a Sick Cert the following day for Stress and Anxiety. She was medically certified until the middle of January 2024.

On medical advice the Complainant declined the Grievance Meeting with Ms CD on the 23rd October 2023.

On the 25th November 2023 the Complainant formally, by e mail, resigned her position. Her stated reason was that the Employment had become very injurious to her health, had treated her very badly and the Hotel was a “Toxic work environment”.

Ms CD wrote by email on the 27th November asking the Complainant to reconsider her resignation. The Complainant replied that the Hotel environment left her with serious health issues, and she could never return. The General Manger, Mr LK, had never accepted her views. All her efforts to seek a solution had failed as he had never believed her.

The Complainant was cross examined by Ms Ní Cheallaigh for IBEC and the Employer. The Complainant maintained her version of events.

In summary she had been forced out of the employment by the Respondent lack of interest in addressing her real concerns of working in a “Toxic” environment.  She had, in her view, a good case for Constructive dismissal

The Respondent was represented by Ms Ní Cheallaigh of IBEC with the three Managers, Mr LK, Ms RB and Ms CD present as witnesses. A detailed Written submission was relied on in support.

Ms Ni Cheallaigh confirmed that the complaint had raised issues, that she was having with Supervisor BC, with Mr LK, the Hotel Manager.  It was a very busy Hotel close to the Airport. Mr LK was a very experienced Hotel Manager and had sought to defuse and resolve the issues locally. This did not appear possible, and he had, at the Complainant’s request, contacted Ms RB, the Group HR Manger. She had met with the Complainant for over 45 minutes on the 11th October. Ms RB, who gave Oral testimony, had attempted to resolve the issue informally but without success. The Complainant was advised to submit a Formal Written Grievance which she did on or about the 18th October2023.

Ms CD of TIFCO HR was appointed to lead an Investigation. She contacted the Complainant to arrange a potential date of the 23rd October for a meeting. However, issues arose at the Hotel on the 19th October in relation to a request to clean a Room post 17:00 hrs - her official finish time.  A brief meeting with the Complainant and the Manager accompanied by the Front of House Manger took place. The Complainant became emotional and left the Hotel. Sick certs were submitted the following day.

On the 25th November 2023 the Complainant wrote by e mail to formally resign her position. Ms CD made efforts on the 27th November 2023 to contact the Complainant to ask her to reconsider her decision. The Complainant replied that evening to advise that she was not going to change her mind.

Accordingly, the Respondent processed the employment exit.

In summary it was their strong view, as expressed by Ms Ní Cheallaigh, that the Complainant had resigned. She had not allowed the proposed Investigation by Ms CD to proceed, for medical reasons, on the 23rd of October 2023 and by resigning, after declining Ms CD’s offer of reconsideration and resumption of the process, had effectively, at her own volition, ended her employment.  It was six weeks after physically leaving the Hotel and could not be considered as anything other than a considered decision.

There could be no case of Constructive Dismissal.

Cross examination of Respondent witnesses was offered but not opted for by the Complainant.

3:1:1         The Law – Legal Precedents

Section 1(b) of the Unfair Dismissal Act.1977 sets out dismissal in cases of this nature.

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

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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.

In plain English this has been taken to mean that an Employee, to bring a Constructive Dismissal complaint, has to establish that the employment Relationship was characterised by

1.      A fundamental Breach of Contract by the Employer - an example would be a failure to pay any wages

2.      A position of completely “Unreasonable” Behaviour - an example would be serious Bullying and Harassment such as sexual harassment or setting work tasks / targets that the employee could never “Reasonably” be expected to achieve.

3.      Complete failure by either side to follow any Employment Procedures such as a Disciplinary Code or a Grievance and Harassment Policy before resigning. There are exceptions to his rule depending on the circumstances of the case.

Cases are also expected to be reviewed by the Adjudicator to establish if they fall into the “Band of Reasonableness” for an employer in the Industry.

It is important to note that the WRC Adjudicator does not give his/her own personal viewpoint but rather a decision based on how the above conditions were applied and the evidence presented.

3:1:2       There is extensive case law on all of the above points – in addition to the landmark cases quoted by the Respondents – Conway v Ulster Bank, UD474/1981 & Travers v Mount Carmel Hospital UD855/2007.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is still worth quoting.

 “For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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 other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, all cases, Legal precedents notwithstanding, rest on their own facts and local circumstances and we must consider the evidence presented, both in oral testimony and written submission, in relation to these below.

3:2       Consideration of the Evidence presented

As a help the Three Questions or “Tests” at point 3:1:1 above can be used.

3:2:1 “ Fundamental Breach” of Employment Contract

The evidence given in written submission and Oral testimony was that the Respondent was a professional well managed operation. It demonstrated good employment standards and well documented procedures. There was no evidence presented of any “fundamental breach” of the basic employment contract. The weight of evidence here has to rest with the Respondent.

3:2:2    “Unreasonable Behaviours” on either side.

The Complainant based her case effectively on the alleged, in Legal Terms, “unreasonable” behaviours of her Supervisor, Ms BC.

Ms BC was not presented as a Witness by the Respondent and cross examination was not therefore possible. The Complainant gave good Oral testimony without any Legal or Trade Union assistance. Her credibility, under sworn Oath, would be hard to challenge. The Supervisor certainly had some questions to answer based on the Complainant’s evidence as regards Room Cleaning Schedules, Time Off, “early outs” and the alleged favouritism to fellow Non-Irish nationals.

However, the Hotel Manager, who gave evidence, also under Oath, was of the opinion that while the Complainant and the Supervisor may not have had a good relationship there was nothing seriously untoward happening as regards any of the issues she was raising. His evidence was professional and it was hard to see any lack of credibility on his part.

Ms RB, the Group HR Manger, had a lengthy meeting with the Complainant on or about the 11th October 2023. Ms RB, gave sworn evidence, that the Complainant was very unhappy with the Supervisor and did not want a direct meeting even if facilitated by HR. A Formal Grievance was her chosen route.

In considering matters the Adjudication Officer had to come to the view that Ms RB was a very professional managerial witness. It was clear that she had no direct agenda against the Complainant and while she felt that an Informal resolution would be preferable, she was prepared to follow procedures and appoint Ms CD of Tifco HR to investigate the complaint. At the time of the meeting with Ms RB, the Complainant was working normally.

The focus then shifted to the events of the 18/19th October. The day, the 19th October 2023, had ended badly, in her own view, for the Complainant. She had felt that the General manger Mr LK and House Manager had bullied her and reduced to tears, she had left the Hotel. The evidence from Mr LK was that meeting had taken place over an issue regarding a Late Check Out Room. In his view, under Oath, the meeting was nothing extraordinary as regards a Hotel Manager and a member of Staff.

The Adjudication conclusion as Regards “Unreasonable Behaviours” is that the Respondent case is weakened by the absence of Supervisor, Ms BC, for cross examination. On the balance of probability from the Oral testimony of the Hotel Manager and the HR Manager it is very difficult to see very hard evidence of “Unreasonable Behaviour” so bad as to justify a Resignation. Legal precedent has always indicated that “Unreasonable” has to be very bad to justify a resignation.

The balance must rest with the Respondent.

3:2:3        Procedures Followed, Not Followed.

The Complainant resigned by e-mail on the 25th November 2023 – (approximately six weeks post her leaving the Hotel on the 18th October 2023.)  It could not be considered a “hasty” decision. Her decision was confirmed by a letter e-mail on the 27th following contact from the Respondent to ask her to re consider and re-engage in procedures which had been put on hold during her sick absence. There had never been a Formal dismissal from the Employer. The services of the EAP Welfare Policy had been suggested in the mail from Ms CD suggesting a “Pause” in proceedings on the 20th October 2023.

From a strict Procedural point of view the Respondent had initiated a Formal Grievance process, had “paused” it in view of the medical issues with the Complainant and when the first e-mail of Resignation arrived had suggested an employee reconsideration/possible return to work.

In terms of SI 146 of 2000, Statutory Code of Practice on Grievance and Disciplinary Procedures it is difficult to fault the Respondent.

The key letter was the e-mail of the 27th November to Manger KC from the Complainant. It is absolutely clear cut and leaves no doubt. 

From the Oral Testimony it was clear that the Complainant was not really advised or professionally represented in employment matters and was unwell during this time. However, her e-mails were absolutely to the point. She was not coming back.

On balance and from an Adjudication point of view the “Procedures” case has to rest with the Respondent.

3:3:1         Adjudicator Summary

The conclusions from the three Constructive Dismissal “tests” set out above are that no strong evidence of a non-Fundamental Breach of Contract was presented, Unreasonable Behaviours were at best a 50/50 between the Parties and the Procedural case was strongly on the Respondent side.

In strict Legal terms, a Complainant case could have possibly been made that the Complainant failure to follow Procedures was because of a lack of faith/confidence in the Procedures. Likewise, the issue of differences in treatment with the Non-Irish staff was not really touched upon. However, these issues were never really supported in evidence by the Complainant and cannot be speculated upon.

Accordingly having reviewed all the evidence presented a case for Constructive Dismissal has not been made. The complaint has to fail.

Constructive Dismissal, Procedural issues,