Complainant

Respondent

Parties

Norman  Tanju

PBR Restaurants Limited

Representatives

Barry Crushell Crushell & Co Solicitors

William Wall Peninsula

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-00055441-001

08/03/2023

The Complainant made a single claim:

A claim for unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended).  

Dismissal was in dispute. The Complainant was employed by the Respondent from the 20 December 2020 until his resignation which was notified by letter dated the 8th of November 2022 and which took effect on the 15 November 2022.

The Complainant provided a written submission prior to the hearing which made the following points:

The Complainant commenced employment with the Respondent on 20 December 2020. The Complainant was issued a contract of employment dated 09 July 2021. The Complainant was employed as a Development Chef earning a salary of €40,000 per year.

CHANGES

The Complainant also strongly objected to his proposal because up until that point his role was as a Development Chef. This was a Monday to Friday, 9-5, position and had involved going around restaurants and hiring and training staff as well as changing menus. The Complainant had always been based in the Stillorgan office, which was a five-minute walk from his house. The location in Malahide was about two hours away.

On 10 October 2022, the Complainant’s General Practitioner certified the Complainant as unfit to work due to work related stress until 23 October 2022

Despite the fact that the Complainant was on sick leave, on 11 October 2022, Mr. H a Director of the Respondent emailed the Complainant.

Despite being on sick leave, due to work related stress, the Complainant responded to Mr. H’s email on 12 October 2022. This email reads:

“As you know we have our differences on some issues we must discuss soon.

don't know why someone keeps sending me rotas for the week ahead and for the following week. They are both attached for you to reference. Can you ask whoever is sending them to please stop because as you know I am very stressed over this and sending me schedules are not helping the situation.

I am more than happy to meet up with you if you like. This would be for an off the record meeting in a neutral setting so we can talk.”

On foot of this email, the Complainant offered to meet with Mr. H on 13 October 2022. The Complainant was hopeful that at this meeting, they would be able to find an amicable resolution to these issues. However, the Complainant contends that at this meeting, Mr. H had quite a dismissive demeanour and told him that their position was not going to change.

The Complainant decided to initiate the grievance procedure. He set out his grievance in writing in an email dated the 24th of October 2022 sent at 16:43.

On 26 October 2022, the Complainant received a letter from Mr. RK inviting him to a formal grievance meeting on 28 October 2022.

On 07 November 2022, Mr. RK informed the Complainant that he could not find sufficient grounds to substantiate his complaint.

On 08 November 2022, Mr. EP contacted the Complainant to inform him that his absence from work was unauthorised as he had not provided them with an updated medical certificate.

The Complainant contends there was a fundamental change in his terms and conditions of employment, which breached his contract of employment. The Respondent ignored pleas from the Complainant's doctor to consider the medical impact these changes would have on the Complainant. Having fully exhausted the internal grievance procedure, the Complainant was left with no other option but to resign.

The following cases were cited

Berber v Dunnes Stores [2009] 20 E.L.R. 61 

Murray v Rockavill Shellfish Ltd

Beatty v Bayside Supermarkets UD142/1987

Ranchin -v- Allianz Worldwide Care S.A. [UDD1636]

Travers v MBNA Ireland Ltd [UD720/2006]

Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132

Western Excavating (ECC) Ltd. v Sharp [1978] IRLR 332

A Manager v A Dry Cleaners ADJ-00003961

An Employee v An Employer (UD1421/2008)

The Complainant gave evidence on affirmation and was cross-examined by Mr. Wall.

There was no unilateral change to the complainant’s contract as the wording of that contract was clear and unambiguous. The complainant’s place of work was set out in the statement of the main terms and conditions of employment under the heading Place of Work as follows:.

“You will be required to work at any of the below PBR Restaurants. The Company expects you to be flexible in this regard”. The clause then specified the Respondent’s premises in five separate locations in Dublin.

The complainant was not asked to work in a venue where he had never worked before. He

had travelled for work from the date of commencement therefore a change in the contract

terms did not arise.

The Complainant was informed on the 7th of October 2022 that he would be required to work on weekends. This was provided for in his contract of employment under the following provision:

“The Company reasonably expects to provide you with 8 hours per day, 40 hours per week. Monday to Sunday, however these days, start and finish times will vary in accordance with the needs of the business “.

The complainant is alleging entitlement to terminate his contract of employment on the basis, inter alia, that the Respondent breached a fundamental condition of the employment relationship.

To succeed in any action, the complainant must prove that the employer no longer intends to

be bound by one or more of the essential terms of the employment relationship. This was not the case. The complainant was already attending various locations throughout the city and so no change occurred in the terms and conditions of employment as set out in the Complainant’s statement of main terms and conditions of employment. The Complainant referred a grievance to the Respondent which was heard. The complainant was issued with the outcome of same and failed to appeal that decision.

The following authorities were cited:

Redmond Dismissal Law in Ireland, Bloomsbury 2nd ed 2007 para [19.18]

Tusla v Flynn UDD1810 (2018) Citing Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332

Kearns v Silverfern Properties Ltd. [2013] 2 JIEC 0701

Sales Manager -v- A Manufacturing Company (ADJ-00023644)

Pungor v MBCC Foods Ltd UD584/25

Aryzta Bakeries -v- Cacs UDD 181

An Employee v An Employer ADJ-00038112

Sales Manager -v- A Manufacturing Company (ADJ-00023644)

Evidence on behalf of the Respondent was given on affirmation by Mr. RK the Respondents C.E.O and by Mr. H a Director of the Respondent. Both witnesses were cross-examined by Mr. Crushell.

Sequence of Events

Before making findings it is necessary first to set out in full the sequence of events by reference to the interactions between the parties.

Prior to the events which led to the Complainant’s resignation, he had been working as “Development Chef”. Though not set out in his contract, the duties of this position involved working nine to five, Monday to Friday.  The Complainant did not work weekends. He was required to travel to the various locations in Dublin and once a week to drive to a processing plant in the North of Ireland to collect fish which he then delivered to the Respondent’s restaurants.  Aside from that day, he usually started his day in Stillorgan County Dublin where he had his office and which he considered to be his base. This location was a short distance from his home. The Complainant’s work ad Development Chef involved delivering training to staff, devising and developing menus, supervising the acquisitions and maintenance and repair of kitchen equipment and supervising cleaning in all kitchens. He did not actually act as a hands-on head chef in any of the locations.

On the 7th October 2022, following the Complainant’s return from holidays, he had a meeting with Mr.  H a Director of the Respondent with ultimate responsibility regarding the decisions of the Company (as he described his position in his evidence). At that meeting Mr. H explained to the Complainant that the requirements of the business necessitated changes to his primary work location and his weekly working pattern. The meeting did not go well and did not reach agreement.

Later that day (the 7th of October 2022) Mr. H emailed the Complainant. The Subject was “Working Pattern and Contract of Employment”.

The email was copied to Mr. EP and to Mr. CP.  

The text of the email was as follows:

“As discussed today, owing to the businesses financial circumstances and it’s needs in winter months, and the closure of most units on a Monday and Tuesday, there will be a requirement for you working pattern to move to a rota system arranged weekly with the unit kitchens including a requirement to work within the unit kitchen teams as a team leader in many cases.

The more specific responsibilities for your role going forward will be as follows to reflect the lower level of trading and operating hours during the winter.

The hours required for this position are Wednesday through Sunday during the operating hours of the business units.

There is a requirement that the fish-run be completed by the development chef on Wednesdays, although this is subject to weekly revision depending on the volume of business.

The roster will be sent out every Thursday, and the current urgent requirement is a Chef in

Malahide. This is because there is presently no head chef working at that site.

It is assumed that the person in this job will fulfil all of the lead chef's responsibilities when

they are on duty.

This position will be reassessed in March, when business often improves.

I recognise that you felt this morning’s meeting was stressful, it’s not my intention for any undue stress to be put on you and so we will heed your instruction to put all matters in writing to you related to this matter, as you’ll appreciate day to day communication will be needed but this will behandled primarily by [E], [R] and the management team, you may deal with me in relation tothis.

I encourage you to seek any advice that you may need, to that end I include your employee

handbook and statement of main terms, however it is our expectation that this new rota working pattern will begin next week and we will be instructing that you are included on the rota from next Thursday.

I have provided a sample set of working hours as well to ensure the pattern for the role is

understood.

I am available at any point to discuss this matter as and when you wish.”

That same day the 7th of October 2022 the Complainant sent an email addressed jointly to Mr. H and Mr. CP. The text was as follows as follows:

Today I was called into [Mr. H’s] office for a meeting to which I attended.

I have serious reservations with regards to the issues within that meeting and any allegations made against me.

I would like to put the company on notice that I am seeking legal advice on the matter and that your actions today have caused me immense stress and anxiety.

All future correspondence must be made to me well in advance and any meetings should be giving me plenty of notice. As required by law.

Please make sure in future all communication and all meeting notes are sent to me as well by email and as stated above the company is now on notice that I am seeing legal advice on this matter”

Mr. H responded the next day, on Saturday the 8th of October 2022.

This email was copied to Mr. C P.

The text was as follows

              “I acknowledge the below email,

I want to confirm again that no allegations were made at the meeting however I have received reports which will be investigated shortly.

The purpose of the meeting as I stated was to discuss the alteration to your typical work pattern and responsibilities and to notify you of the investigation.

I have sent my email yesterday to that effect as requested.”

On 10 October 2022, the Complainant’s doctor certified him as unfit to work due to work-related-stress until 23 October 2022. The Complainant also submitted a letter from his doctor dated the 13/10/2022 (“The Medical Letter”) which stated as follows:

“I am writing at my patient's … request to inform you that he has a history of chronic recurrent low back pain and had lumbar spine degenerative changes and disc bulging seen on MRI scans in the past. It is my understanding that his history of chronic back pain was one of the reasons he has avoided long hours working in a kitchen in the last few years. There is a significant risk of a flare in his back problems if he is compelled to work for long hours standing in a kitchen. It is my recommendation that, at the very least, a risk analysis be carried out by a specialist in Occupational Medicine before he should consider working again in such an environment.”

The Complainant emailed Mr. H on the 21st of October 2022 to say that he was fit to return to work.

On the morning of the 24th October 2022 Mr. H issued an email to the Complainant inviting him to a ‘welfare meeting’. The Complainant responded at 13:03 as follows:

“While I am happy to have our phone meeting today at 4pm I feel I have to remind you that I did already say I am fit to go back to work in a email to you last Friday 21st Oct, but if you need to have verbal confirmation I understand.

As I have declared myself fit to work from today the 24th of October I am now at a loss

of earnings and would like to return to my job please.

I understand about the company making cuts that's why I suggested to you I would work a 3‐day week.

Just to sum up, I have stated that I am at a loss of earnings now and I would

appreciate very much if this matter can be resolved as soon as possible please.

I'm sure you understand.”

A telephone conversation took place between Mr. H and the Complainant that afternoon. Mr. H sent an email to the Complainant at 16:02 as follows

Subject: RE: Welfare Meeting

Dear Norm

I hope you are well.

You have stated that while you are fit for work, you are not fit to take on the responsibilities of your role as articulated, can you confirm that you are fit to undertake your full role and responsibilities as we have set out?

You have also stated you are not happy to work at the weekends, this is clearly expressed in your contract of employment, has this now changed since we last spoke?

You have also now informed us of a back issue which had previously not been disclosed to me as the reason you cannot take on these responsibilities.

Due to these circumstances, we need to assess your actual ability to discharge your role fully, so we believe we need to explore this issue in more detail.

Shortly after this email was sent, again on the same day, the 24th of October 2022 at 16:43 the Complainant emailed a formal grievance to the Respondent as follows:

“I would like to formally start a grievance procedure as soon as possible.

I have several issues I would like to discuss.

1. [Mr. H] has constantly told me he wants me now to work weekends and evening shifts in Malahide Fish Shack.

This I regard as a change of contract and outside my normal working hours of 9am - 5pm

And I insist I will not be working outside my normal working pattern and medically I cannot work long hours standing up. I have already provided all medical certs to this effect.

2 . [Mr. H] phoning me up and telling me how dare I write to in my eyes a stranger

and not give out private confidential information to him. Saying to me I must be very unhappy in my job when in fact I was not, and also telling me it was the most unprofessional email he ever read.

My grievance here is no one ever gave the correct information that this person is now working for the company until I was told to get in touch with Ian Higgins, which was after the event!

3. I am based in the Office in Stillorgan for nearly 2 years now and you tell me I am

rostered in Malahide.

My grievance here is the office is 5 mins walk from where I live, and Malahide would be around 90 mins - 120 mins away, totally unacceptable.

4. [Mr. H] arranging a phone call today at 4pm about how best to get me healthy and

back to work where in fact the only thing he asked was "will you still not be working at the weekends"

My grievance here is that he never once asked me about my health but continued to

pestering me about working weekends and stressing me out again about him wanting to change my contract

I would like these Grievances to be heard as soon as possible as I am now at a loss of earnings and also in venue I am comfortable with.

I would also like a mediator not connected to the company please because I am not very

comfortable with the way [Mr.  H] addresses the situation.

I would also like any correspondence with me to be in writing going forward and any

minutes of meetings in the future to be recorded and copied to me.”

By letter dated the 26th of October 2022 the Respondent’s Mr. RK wrote to the Complainant inviting him to attend a grievance hearing to discuss all complaints made on the 28th of October 2022. The Complainant was advised that he was entitled to be accompanied at the meeting by a fellow employee or trade union official.

The grievance meeting proceeded on a slightly later date, the 2nd of November 2022. The Complainant attended alone. Mr. RK was present with a note-taker.

The outcome of the grievance meeting was communicated to the Complainant by Mr. RK on Monday the 7th of November 2022. The outcome was to the effect that Mr. RK, having carried out an investigation into the grievances discussed in the meeting, could not find sufficient grounds to substantiate the grievance. The Complainant was advised at the end of the letter as follows:

“You have the right of appeal against my decision, and should you wish to do so, you should write to [Mr. CP], Director within 5 days giving the full reasons as to why you are dissatisfied with my decision.”

The next day, on the 8th of November 2022 a letter was written by Mr EP to the Complaint.  Mr. EP is Director of the Respondent and was described Mr. RK as jointly holding the office of C.E.O with him. Mr EP is the son of Mr CP. The text of the letter from Mr. EP was as follows:

“Further to our recent dialogue beginning the 7th of October where we discussed changes to you[r] work patterns etc and following on [you] were then absent due to stress. I have not had any further communication with you in relation to your medical status since we requested a fit to return certificate and consent to contact your GP for a report.

We have now allowed 14 days for you to contact us to submit the relevant medical evidence needed to cover your absence as per your terms and conditions of employment.

This is totally unacceptable, and I require you to contact me no later than 10th November 2022 to discuss the situation.

I feel it is only fair to advise you that if you fail to contact the Company to discuss the reasons for your absence or if the reasons for your unauthorised absence are unacceptable, the Company will have no option but to commence disciplinary action against you.

I you have any queries regarding the contents of this letter, then it is important that you contact me to discuss them.”

Later that same day, on the 8th of November 2022, the Complainant wrote to Mr. H and Mr. CP tendering his resignation in the following terms:

“I am writing to let you know that I will be resigning from my role as Development Chef with immediate effect.

I am resigning with immediate effect due to a breach of contract.

[Mr. H] wanted to change my terms of contract without my agreement.

I am resigning because Ian Higgins did not give me my 28 days’ notice of change of Terms, which is a breach of contract.

I also find it unacceptable that you want to change my working pattern without my agreement.

I would also like it to be known that I felt like Ian Higgins was harassing me and bullying me while I was out on sick leave, because of his actions towards me I am leaving.

I raised a grievance about this issue on Monday the 24th of October and after a grievance meeting it was not satisfactory in resolving this matter.

My role is now I feel untenable, and I am left with no other option but to resign from my role as Development Chef with immediate effect.”

Following the letter of resignation Mr. H emailed the Complainant on the 14th of November 2022 stating as follows:

“I was surprised to receive your letter of resignation on 8th November 2022 with effect immediately.

I am now writing to ask whether this is really what you want to do.

In your letter you outlined a number of issues and concerns as the underlying reason for your decision to resign.

These issues were addressed with you formally in line with our company Grievance Policy and

Procedures.

You have received the outcome of this Grievance Hearing, and to the extent you disagreed with an aspect of same you had to right to appeal the decisions but have not availed of this process.

If you wish to reconsider your decision, please contact me within the next 2 days, namely by 16th of November at the latest.

If you decide not to retract your resignation, then we will respect your wishes and process the termination of your employment and forward any monies which may be outstanding.

I look forward to hearing from you.”

The Complainant responded to this letter the next day, on the 15th of November 2022 stating as follows: 

“Unfortunately, the company’s actions towards me made me very unwell and I have had to go on sick leave for 2 weeks.

              After my sick leave I wanted to return when I was fit to work, and you would not let me.

              After informal talks did not resolve anything, I asked to start the formal grievance procedure.

You rejected all of my grievances with no recommended adjustments to your demands of change of Terms and conditions to my contract.

I received a letter of Unauthorised Absence after my grievance hearing on the 8th of November from [Mr. EP].

The letter from [Mr. EP] finally made me send my resignation letter because of the harassment received while out of work in the middle of a grievance procedure.

This is not what I want but the company’s actions towards me, and the letter of Unauthorised leave from [Mr. EP] pushed me over the edge and made me send my resignation letter because I did not want to be harassed or bullied any more.

You made my job untenable when you wanted to change my Terms of Contract without my agreement and the required 28 days’ notice of change to my terms you chose to ignore.

The company have made it quite clear that all your demands to me stand and you will not be changing them. This I feel would make my decision not to appeal better for me

I feel the company has constructed my resignation and left me with no option to resign.”

Mr. H responded to the Complainant’s letter at 9:39 am on the 16th of November 2022 as follows:

I note your letter of last evening, there appear to be a number of mis-statements in your letter so I wish to clarify once the company’s position again.

You have not been removed from your role you have simply not attended work, the company is not responsible for any alleged lost earnings, you have not allowed us to engage with medical professionals to establish whether you can discharge your responsibilities safely with your previously undisclosed medical diagnosis.

Notwithstanding the above, based on the information available to us and the business needs of the company at this point, should you opt to return to your role, your working pattern will remain as discussed during trading hours of the business between Wed-Sun as the company’s needs require at this point in the trading year, we are aware that you have difficulty with this however these are the working hours available during this trading period.

Unless we hear further from you before close of business today we will operate as set out in my previous email.

The Complainant responded that same day, the 16th of November 2022, at 11:58 stating as  follows:

“There seems to be a number of mis-statements in your most recent email so you can read

the below and perhaps correct yourself.

You say I have not been removed from my role and that I have failed to show up to work

Where in fact I wrote to you on Friday 21st October and told you I was fit to return to work from Monday 24th October. You refused me to attend work. I have it in writing.

You say I refused to engage with a medical professional when in fact I said to you I will need it in writing first that the company will pay any costs incurred with this.

You made nothing clear and left me confused as to who was paying and what is required in

this arrangement.

If you had of been clear and concise, I would of course gone anywhere to save my job.

But you were not clear in any way.

You mention a previous undisclosed medical diagnosis. I don't remember having to go for a medical exam atter the interview stage or in fact that it was a requirement of this company. I do not remember having to fill in any form or sign any documents relating to my medical history when starting this job. My undisclosed medical ailment was explained to you perfectly well and clear in a letter from my doctor and you refused to take it as it says. I cannot work for long hours standing up because of bulging disks and pain. This ailment does not affect my role as Development chef except for lifting heavy items, which in fact everyone I work with knows. I also told you that I would not be able to do any new roll described because of my back and standing for long hours and bending up and down into fridges, you refused to listen to me.

My loss of earnings.

Like I said, you stopped me from returning to work and continuing with my role. You also made me ill for near 2 weeks because of your treatment and demands, not forgetting the harassment and bullying while out on sick leave.

If you still refuse to pay me my loss of earnings brought on by your actions towards me I would think it best that we leave this to the WRC to decide.

I will just add it to the list of complaints I have. Your more than welcome to send my loss of earnings with my final pay this week.

The company has constructively made me resign by making so many unreasonable requests

and not considered my suggestion to do 2-3 days a week to save costs. And the company breached my terms of contract by not giving me the required 28 days notice of change and tried to force this change on me by not following the required notice period as required by law.

You will be getting a full list of complaints in due course from the relevant body, and you will

of course have your right to defend yourself in any employment tribunal.”

No further correspondence ensued. The Complainant’s solicitor came on record by way of correspondence to the Respondent on the 8th of March 2023 on which date the Complaint Form initiating the present claim was delivered.

Analysis of Sequence of Events and Interactions Between the Parties

The foregoing is drawn from the letters and email communications between the parties which were supplemented by oral testimony at the hearing. The key issues are identified and discussed below.

The Medical Issues Prior to the Grievance Process

There were two medical issues involved in the case. Firstly the Complainant was certified by his doctor as unfit for work due to work-related stress from the 10th to the 23rd of October 2022. In addition to that medical certificate, which was dated the 10th of October 2022, a separate letter (”the Medical Letter”) was also submitted by the Complainant from his doctor – the same doctor – which stated that: the Complainant has a history of chronic recurrent low-back pain from degenerative changes and disc bulging which had been identified by M.R.I scans; that if the Complainant had to stand for long hours in a kitchen this would present a risk of flare-up; and that a risk analysis by a specialist in Occupational Medicine was recommended before the Complainant would consider working in a kitchen environment.

The medical certificate of the 10th and the Medical Letter of the 13th both presented the Respondent with issues which are governed by the disability provisions of the Employment Equality Act 1998, the case-law interpreting those provisions and the well-established best practices that have emerged. In summary, where an issue of disability comes to the attention of an employer, the latter is obliged to implement measures: to identify the nature and extent of the disability and (where applicable) its prognosis, to identify the extent (if any) to which the disability affects the fitness of the employee to carry the duties associated with that employee’s work and if and to the extent so, to explore the possibility of providing “reasonable accommodation” for that disability.

In most cases involving a medical issue, the first port of call for an employer is to organise an independent medical/occupational assessment of the employee by reference to the relevant employment duties. Without this step nothing can be decided, and no meaningful action can be taken. Secondly where an employee is due to return to work following a period of sick leave a prudent employer will usually require, and arguably has a duty to insist, that such an employee be certified as fit for work before being allowed to return. Where, as in this case, the sick-leave is certified as due to work-related-stress, a prudent employer will be particularly concerned about allowing the employee to return, uncertified.

In the present case it is an undisputed fact that an independent medical assessment was never carried out by the Respondent. In addition, it is also an undisputed fact that, aside from the certification of the 10th of October 2022 (certifying up to the 23rd of that month) and the letter of the 13th of October 2022, no further medical information/ documentation was received from the Complainant. 

An extraordinary chain of events ensued after the medical documents were submitted.

The Complainant was contacted by email and invited to an “off the record” meeting with Mr. H. The invitation and the meeting took place during a period of certified sick-leave due to work-related stress. The Complainant’s submission indicates that no contact should have been made and the Respondent noted that the Complainant was able to send and receive emails and to attend this meeting while on certified sick leave. An established practice has evolved regarding this type of sick leave where an employee can still be unfit for work but is certified as “fit to engage” in a dispute resolution process. This was not done in the present case at this or at any other stage. The result was that both parties were unsure of their ground but proceeded nonetheless and the meeting took place which unfortunately did not resolve the issues. The Complainant remained on certified (unpaid) sick-leave until the 23rd of October as per his certificate. The following day he took the unusual step of declaring himself fit for work. In his evidence, the Complainant said that a significant factor in this unusual decision was the fact that he was not in receipt of income at this time. Following this ‘self-certification’ on the part of the Complainant Mr. H invited him to a ‘welfare meeting’ and this led to a telephone conversation between them on the 24th of October 2024.

Following the conversation Mr. Higgins sent the following email (as already quoted more fully above):

You have stated that while you are fit for work, you are not fit to take on the responsibilities of your role as articulated, can you confirm that you are fit to undertake your full role and responsibilities as we have set out?

You have also stated you are not happy to work at the weekends, this is clearly expressed in your contract of employment, has this now changed since we last spoke?

You have also now informed us of a back issue which had previously not been disclosed to me as the reason you cannot take on these responsibilities.

Due to these circumstances, we need to assess your actual ability to discharge your role fully, so we believe we need to explore this issue in more detail.

The Complainant emailed a list of grievances about forty minutes later. Included in the email (full text quoted above) was the following:

“..[Mr. H] arranging a phone call today at 4pm about how best to get me healthy and

back to work where in fact the only thing he asked was "will you still not be working at the weekends

My grievance here is that he never once asked me about my health but continued to

pestering me about working weekends and stressing me out again about him wanting to change my contract”

Having heard from both parties to this conversation, in evidence, I must make findings on what was discussed based on their respective testimonies and the emails (such as were produced by the parties) written by each of them immediately following the conversation. The meeting was a one-to-one on the telephone and there are no notes or minutes of the conversation.

In his evidence Mr. H said that he could do nothing until he ascertained whether the Complainant was fit for any duties at all. During the telephone call he asked the Complainant to attend an independent medical examination and to sign a consent form to facilitate this process. Mr. H said that the Complainant simply refused and stopped work.  He clarified that the Complainant never engaged with the medical assessment but said that the Respondent should accept what his doctor had said - referring to the Medical Letter of the 13th of October 2022. In cross-examination Mr. H was asked whether he ever considered allowing the Complainant to maintain his previous established working pattern for the time being and he said that he could not do this because the medical letter from the Complainant’s doctor “changed everything”. The Complainant said that he did not refuse to attend a medical assessment, but he did say that he would not sign anything until he received confirmation from the Respondent that the Respondent would cover the cost of the medical assessment. If the consent form was emailed to the Complainant before this telephone call, no such email was put before me so I cannot determine what it said. Furthermore, no email was put before me whereby the Complainant clarified his position regarding the independent medical assessment or whether in fact he refused outright to attend. He did clarify his position in post-dismissal correspondence on the 16th of November 2022, but as stated, there is no evidence that he did so at any time before then.

After this telephone conversation Mr. H sent the email quoted above. This email conflates issues of present medical fitness, fitness to carry out the changed working pattern and the issue of the Complainant’s willingness to work weekends. The issues were separate. The request for the Complainant to confirm that he was “fit to undertake your full role and responsibilities as we have set out” was not a matter for the Complainant to decide but was more properly an issue to be assessed medically. The inclusion of a question as to whether the Complainant’s ‘position’ that he was not happy to work at the weekends had changed is difficult to understand since Mr. H had already formed the view (as he said in his evidence) that the medical letter “changed everything” and he was unwilling to allow the Complainant to return to any duties; so the Complainant’s willingness or otherwise to do so was overtaken by the need for an independent medical assessment.  The email did not provide clarity regarding the parameters of the medical assessment including the medical and legal necessity for it to take place nor did it confirm that its cost would be borne by the Respondent. The email could have provided the Respondent with an opportunity to set out its demand clearly and precisely for the Complainant to attend the medical examination and to complete such consent forms etc. as were required. That is not what the email did.

I find that the evidence as provided does not establish that Complainant refused outright to attend an independent medical examination. He was certainly confused about what was required and sought clarification. The email from Mr. H did not provide that clarity and the issue was not visited again by the time the grievance procedure got underway.

The Grievance Process

There were no further communications regarding the Complainant’s medical status generally after the email from Mr. H of the 24th of October 2022 when the grievance procedure was initiated. The letter of invitation was sent by Mr. RK on the 26th of October 2022 made no mention of the Complainant’s fitness nor was any medical certification requested from him. As mentioned above, in cases where an employee is on medical leave due to work-related-stress, a dispute resolution process is often undertaken on the basis that the relevant employee, although certified as medically fit for work, is nonetheless medically certified as ‘fit to engage’. No such certification was sought from or provided by the Complainant and thus when the invitation was issued on the 26th of October 2022 and the Grievance Meeting took place on the 2nd of November 2022, the only available information regarding the Complainant’s medical fitness rested entirely on his own indication as conveyed to Mr. H on or about the 24th of October 2022 which Mr. H said in his evidence, Mr H  was not prepared at that time, to accept.

I was provided with minutes of the grievance meeting which took place on the 2nd of November 2022 and the letter from Mr. RK dated the 7th of November 2022 advising of the outcome of the grievance process (“the Outcome Letter”). No other documentation such as interview notes with other individuals named by the Complainant was produced in evidence.

Returning to the medical assessment, the issue was dealt with in the following terms in the outcome letter:

“Summary of Complaint

[Mr. H] arranging a phone call today at 4pm about how best to get me healthy and back to work where in fact the only thing he asked was "will you still not be working at the weekends"

My grievance here is that he never once asked me about my health but continued to pestering me about working weekends and stressing me out again about him wanting to change my contract”

The Grievance finding was as follows:

“I refer to the email sent by [Mr. H] on the 24th of October. The business needs hadn’t

changed, or role responsibilities and Ian Higgins was trying to establish whether you were

able to do the role.

In conclusion, I cannot find sufficient grounds to substantiate your grievance.”

The issue is also discussed further on in the decision in relation to another grievance which was summarised as “Loss of earnings”. The Grievance finding was:

“I refer to the emails that have been sent from [Mr. H], which demonstrate the company's eagerness for you to return to work on the work pattern and responsibilities that have been discussed with [Mr. H ], the company does not provide sickness cover. I also refer to the email you sent to [Mr. H] in which you refused to allow a company appointed doctor and or consent to engage in conversation with your primary care physician. [Mr. H] highlighted that the company wants to be able to factor that information into any discussion or review of the responsibilities in light of the new medical information that you produced while you were out sick.

In conclusion, I cannot find sufficient grounds to substantiate your grievance.”

As already stated, I was not provided with any email from the Complainant dealing with the issue of consent for his doctor to share information with an independent doctor nor for that matter was I provided with any email from the Complainant at all dealing with the issues raised in the telephone call with Mr. H on the 24th of October 2022. I am left with the conclusion that the findings above are based on the decision-makers understanding of the facts but there is no evidence that this understanding was put to the Complainant for comment/rebuttal before the finding was made.

As regards the substantive issue, being the Complainant’s objections to the changes proposed on the 7th of October 2022, the issue was dealt with in the grievance outcome as follows:

Summary of Complaints

“1. [Mr. H] has constantly told me he wants me now to work weekends and evening shifts in Malahide Fish Shack. This I regard as a change of contract and outside my normal working hours of 9am - 5pm And I insist I will not be working outside my normal working pattern and medically I cannot work long hours standing up. I have already provided all medical certs to this effect.”

The Grievance Finding was as follows:

“1. I refer to your contract and in particularly the following:

JOB TITLE – “You are employed as Development Chef and your duties will be advised by Management. Your duties may be modified from time to time to suit the needs of the business”

PLACE OF WORK – “You will be required to work at any of the below PBR Restaurants.

The Company expects you to be flexible in this regard.

[Five separate locations set out]…”

HOURS OF WORK – “The Company reasonably expects to provide you with 8 hours per day, 40 hours per week. Monday to Sunday, however these days, start and finish times will vary in accordance with the needs of the business. You will receive appropriate unpaid rest breaks depending on the length of your shift and in accordance with the Organisation of Working Time Act. You may be required to work additional hours when authorised and as necessitated by the needs of the business.”

Your job responsibilities and working hours are subject to change in accordance with the requirements of the company, as stated in the contract that was signed on December 21st, 2020.

During the course of the hearing regarding the grievance, you mentioned that there have been times when you have been required to work on the weekends.

In conclusion, I cannot find sufficient grounds to substantiate your grievance.”

At the Adjudication hearing Mr. H in his evidence said that he did not consider making the Complainant’s role redundant because the Complainant’s role mapped across the changes. He added that this was a plan but the Complainant would not discuss it. Mr. H accepted that the Complainant worked 9 to 5, Monday to Friday and had what he described as a “convenient shift” for the preceding two years but this, he said, did not mean that the Complainant was entitled to it. Mr. H stressed that an employee of the Respondent could be asked to do anything and that he himself had carried out kitchen porter duties, had washed dishes and had delivered fish. From the finding in the grievance outcome, it is impossible to say whether this was the information provided to Mr. K as there are notes of whatever interview was held with Mr. H and if any were taken, no evidence was presented that they were conveyed to the Complainant for a response or rebuttal.

As regards working on weekends, the Complainant in his evidence said that he had worked on a weekend on one occasion on his own initiative because a specific situation had arisen but that what he was being asked to do by Mr. H was to work every weekend which, he said, was a change to his established working pattern. The Complainant took issue with the interview note wording which he said, did not accurately reflect what he said as the note gave the impression that he accepted that he regularly worked weekends in the past, which he insisted was not the case and was not what he said in the meeting. 

In the notes of the meeting the Complainant is recorded as making an additional submission as follows: “…go back to No. 1. I forgot about the contract itself, when I was interviewed for the job by Mr. CP, there was a verbal agreement that I would be doing 9-5 and then there was a handshake after the meeting”.

The issue of the changes to the Complainant’s working pattern was fundamental to the dispute and necessarily involved a clash as between the  wording of the Complainant’s contract, on the one hand and the actual duties and working pattern which the Complainant had worked from the start of his employment, on the other. This was a complex area of fact, law and industrial relations yet the finding turns on the express wording of the contract and to an extent on a finding of fact that the Complainant said, according to Mr. RK’s letter that, “there [had] been times when [he had] been required to work on the weekends”. In concluding, as he does, that he cannot find sufficient grounds to substantiate the grievance, Mr. RK does not specify why it is that the strict interpretation of the contract overrides the Complainant’s assertion of his entitlements based on the pattern established for some two years going back to the start of his employment. If, for example, that finding was based on the view offered by Mr. H in his evidence before me at the adjudication hearing, there is no mention of this input from Mr. H or anyone else. There is no indication that Mr. CP was interviewed with regard to what was agreed with the Complainant before he started to work for the Respondent. The only other element of reasoning in the decision is based on the Complainant having been required to work on the weekends in the past. Even if that fact was established (and the Complainant did not accept that it could fairly have been), it is difficult to see how that issue alone could fairly and comprehensively have addressed the primary thrust of the Complainant’s grievance which was that he was now being required to work every weekend.

As regards the Respondent’s proposals to work part-time, the Complainant said in evidence that he had mentioned this idea at the informal meeting with Mr. Higgins and the grievance meeting notes show that the Complainant mentioned it clearly at the end of the grievance meeting as well. However the grievance outcome is inexplicably silent on the issue altogether.

The grievance process was commenced without having first obtained a medical assessment of the Complainant. Despite this fact, findings were made by the grievance process decision-maker which avoided the issue on the basis that the Complainant had refused to engage in the assessment and which referred to an email from the Complainant to this effect which was not produced in evidence. The process of fact finding in the grievance process in this regard was defective and contrary to fair procedures as were other findings made given that the Complainant was not afforded an opportunity to respond to issues which instead were concluded as findings against him. Regardless of the reasons for the unavailability of the medical assessment, without it there was no realistic possibility of the grievance process reaching a workable solution but before it could even get to that point the Complainant’s grievances were dismissed peremptorily.

The failure to secure a medical certificate before commencing the grievance process was contrary to best practice where the Complainant was uncertified but had been absent for two weeks with work related stress immediately after the issues which were the subject matter of the grievance had arisen.

In the light of the foregoing issues, I find that the procedures adopted were fundamentally flawed and cannot reasonably be held out as a comprehensive, fair or impartial consideration by the Respondent of the issues raised by the Complainant.

The letter written on the day following the grievance outcome requiring medical certification under threat of disciplinary proceedings for unauthorised absence was inappropriate and unfair and did nothing to advance the goal of finding a resolution; in fact, it prompted the Complainant’s resignation. The request for medical certification to cover the Complainant’s absence and the suggestion that the Complainant’s absence was unauthorised, were disingenuous since the Complainant had been engaged in the grievance procedure and was permitted to do so without medical certification. The basis or justification was offered by the author of this letter, Mr. EP who did not give evidence.

The Complainant’s resignationletter and his subsequent letter of the 15th of November 2022 raised express allegations of bullying and harassment against Mr. Higgins and Mr. EP. This was the first time that the phrase bullying and harassment had been used by the Complainant. In the grievance meeting the notes record the Complainant as saying: “I think [Mr. H] is beginning to nitpick and pestering me, I think he was picking on me there. I don’t want to say he was bullying me, because you would have a hard time bullying me, he was picking on me”. However the resignation letter abandons this stance and clearly uses the words bullying and harassment. Mr. H is specifically identified as an alleged bully, yet it is he who responded to the Complainant’s resignation letter. Indeed a further allegation is made in the Complainant’s letter of the 15th of November 2022 against Mr. EP in relation to his letter regarding unauthorised absence. The response to the Complainant’s letters does not specifically acknowledge the allegation of bullying and harassment but refers to the issues raised in the resignation letter in a more general way: “These issues were addressed with you formally in line with our company Grievance Policy and procedures.” In relation to those procedures the Complainant’s contract and the Respondent’s Company Handbook indicate that allegations of bullying and harassment will be processed using a different and more elaborate procedure as provided for in a specific section of the handbook than those provided for in relation to grievances simpliciter.   It was inappropriate for Mr. H to respond to the Complainant’s resignation letter as he was named as an alleged perpetrator of bullying and harassment and moreover the appeal offered was in relation to a grievance investigation as distinct from bullying and harassment allegations.

An appeal was offered in the grievance outcome and repeated in the letter of response to the Complainant’s resignation. However the individual nominated to hear the appeal had been copied on the initial emails of the 7th and 8th of October 2022, he was named by the Complainant at the grievance meeting as a person with whom an agreement had been reached when the Complainant commenced his employment (that his hours would be nine to five) and he was also mentioned by the Complainant in another part of the same meeting in relation to another issue which was discussed at the meeting. Notwithstanding, he was held out as a person who was as the grievance decision maker described him in the minutes “a person who [was] still outside of all the process”. This was not the case.

Applicable Law

The Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify him terminating his employment. The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 332. The Labour Court decision as cited by the Respondent in Tusla v Flynn UDD1810 (2018), (approving and adopting the dicta of Denning MR in Western Excavation) provides a helpful summary of the essential elements of a constructive dismissal as follows:

“Firstly, Section 1 of the Act envisages two circumstances in which a resignation will be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to resign his position, often referred to as the “contract test”. This requires that an employer be “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” as held in Western Excavating (ECC) Ltd v Sharp. Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so [he/she] is justified in leaving.”

Although there are two distinct tests, the contract and reasonableness tests, the two may be combined.

The Role of the Grievance Procedure in Constructive Dismissal Cases

Redmond’s Dismissal Law, [third edition Paragraph 19.14], notes that 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.

In Conway v Ulster Bank Ltd UD 474/1981, (Kerr and Madden 2nd Ed p. 105) the E.A.T. found that the employee had not been unfairly dismissed by way of constructive dismissal and held that the employee “did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints’.

Notwithstanding the general principles laid down in the Conway case and set out in Redmond’s Dismissal Law there are exceptions to the requirement to use, and thus by extension to exhaust the internal procedures. Before dealing with those exceptions, I will first consider the authorities relied on by the Respondent in support of the contention that an employee who clams constructive dismissal must prove that he has invoked and exhausted the grievance procedure.

Firstly, In Pungor v MBCC Foods Ltd UD584/25 the employee was dismissed for dishonesty following a disciplinary process. She was offered an appeal which she did not pursue. The E.A.T. determined as follows:

“The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process. Furthermore, the appellant made admissions in relation to the allegations.”

Second; The Labour Court decision in Aryzta Bakeries v. Cacs UDD1812 was also cited by the Respondent. That case did not involve constructive dismissal. The Complainant was dismissed pursuant to disciplinary procedures on the basis of being under the influence of alcohol at work. The employee was offered but did not pursue an appeal. It is clear from the decision that this was a significant (but not the only) basis for the finding that the employee was not unfairly dismissed. The Labour Court examined the procedures adopted in the disciplinary process and commented on same as follows:

Having considered all aspects of this matter and taking account of the circumstances the Court finds that the procedures employed by the Appellant were fair and that any failings were not of such a significance in this case as to render the dismissal procedurally unfair.

The Respondent also relied on An Employee v An Employer ADJ-00038112. Again, the subject matter was actual rather than constructive dismissal.

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employ the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

The foregoing is an excerpt from a paragraph of the decision. As can be seen from the full paragraph of the decision, the ratio decidendi of the case is to the effect that the dismissal was unfair because the procedures applied were flawed. The question of an appeal from a grievance finding was not an issue in the case. The basis of the decision is set out at its end as follows:

“An employer is bound to show not only had he substantial grounds justifying dismissal but also that he followed fair and proper procedures before dismissal. In this case I believe there are a number of procedural faults which undermined the procedures, the faults are explained above. In brief, the intersection of grievance procedures and disciplinary procedures and the less than satisfactory appeal process combine to make the overall procedures unfair.”

Lastly the Respondent relied on In A Sales Manager v. A Manufacturing Company ADJ-00023644 which was also a dismissal as distinct from a constructive dismissal case. The employee was dismissed for gross misconduct following a disciplinary procedure. Although the Adjudicator expressed the belief that the complainant’s failure to exercise his right of appeal was “a serious error of judgement” the decision does not turn on this point. The actual finding was as follows:

“Having considered the facts of the case I have decided that the Respondent has acted in a reasonable manner and the decisions made by the Respondent fall within a band of reasonableness. Policies and Procedures put in place by the Respondent were strictly adhered to and the Complainant was given every right as per those procedures.”

In A Worker (Mr O) (complainant) v An Employer (respondent) (No.2) [2005] 16  E.L.R.  132 the Labour Court stated.

“The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (see Allen v Independent Newspapers [2002] E.L.R. 84; May v Moog Ltd [2002] E.L.R. 261 and Monaghan v Sherry Bros [2003] E.L.R. 293. See also the determination of this court in New Era Packaging v A Worker [2001] E.L.R. 122).”

The Court went on to uphold the claim for constructive (discriminatory) dismissal and in doing so held that in that case the employee’s failure to initiate a grievance was not fatal to his claim.

“There are a number of factors which, in the exceptional circumstances of this case, excuse the complainant's failure to formally complain to the respondent before resigning. First, the respondent did not have a grievance procedure in place. Secondly, the offending conduct was perpetrated by the principals of the respondent who knew or ought to have known what its likely impact would be on the complainant having regard to his temperament and mental fortitude. Thirdly, the complainant condition was such as to require him to avoid confrontational or stressful situations and this was known or ought to have been known to the respondent.”

In Allen v Independent Newspapers the E.A.T. found that the claimant's conclusion that she could have no confidence in the respondent to either properly or effectively address her grievances was a reasonable conclusion in all the circumstances.

In Monaghan v. Sherry Brothers [2003] E.L.R. 293, the E.A.T upheld the claim where

“the grievance procedure and/or the disciplinary procedure was hopelessly inadequate in all the circumstances”

In May v Moog Limited [2002] E.L.R. 261 the E.A.T (by a majority) held that:

”in the exceptional circumstances of this case, the claimant's resignation due to the state of her health was reasonable. Her failure to use the grievance procedure because she felt ‘isolated and depressed and could cope with no more either physically or mentally’ is not fatal to her claim in the exceptional circumstances outlined.”

In New Era Packaging v A Worker [2001] E.L.R. 122) tha Labour Court, in upholding a claim for constructive discriminatory dismissal was

“satisfied that the respondent knew or ought to have known that [the situation complained of] was occurring and failed to take any or adequate action to protect the claimant.

In Travers v MBNA Ireland Limited, UD720/2006 the Employment Appeals Tribunal stated that:

“…in constructive dismissal cases it is incumbent for a [Complainant] to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”

The determination of the E.A.T In Fitzsimons v Mount Carmel Hospital, UD855/2007 contains the following appraisal of the dealings between the parties:

The Tribunal finds that the employer did all it could in the aftermath of receiving the

letter of resignation. A full investigation was conducted and an invitation to return to

the workplace was extended. In addition, it is noted that the employer was open to

meeting requests and provisions which may reasonably attach to the said return to

work.

In addition, an offer was made to bring in a mediator to facilitate a harmonious return

to the workplace if that was possible.

Ultimately, the applicant declined the offer of return stating that her relationship with

her line manager had deteriorated too much. The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties”.

In that decision the employer was held to have taken adequate steps to tackle the employee’s issue and the employee was criticised, it would seem, in particular for refusing to engage with a return to work including with the assistance of an external mediator. However the claim succeeded on the limited basis that there was inordinate delay on the part of the employer in

addressing the issues and there was a very bad working atmosphere for up to 24 months prior to the resignation.

I note that the wordings in these two quotations are not absolute. In the Travers case the obligation to utilise all internal procedures was held to apply “unless good cause can be shown that the remedy or appeal process is unfair”. In the Fitzsimons case it was held that internal procedures must be applied fairly and an employee must engage fully where a clear effort is being made to overcome past difficulties.

I am satisfied that none of the authorities which I have considered establish an absolute obligation on an employee claiming constructive dismissal to exhaust the internal procedures. While the general rule is that internal procedures should be invoked and exhausted before an employee can claim constructive dismissal there are exceptional situations where the failure to invoke internal grievance procedures or the failure to exhaust those procedures will not necessarily be fatal to a constructive dismissal claim.

Overall Conclusions and Findings

Applying the applicable law as summarised above the circumstances in the above case as already analysed above I make the following findings:

Two separate medical issues, certification to return to work following stress leave and a potential disability requiring independent assessment were conflated in email and telephone communications with the Complainant before and immediately following the grievance process.

A formal grievance meeting took place when the Complainant’s medical fitness to engage had not been confirmed.

The formal grievance procedure was undertaken without the benefit of an independent medical assessment when the issue had been clearly raised in a letter from the Complainant’s doctor. Notwithstanding, the Grievance proceeded without assessing the Complainant’s medical capability based on the Complainant’s refusal to undergo a medical assessment. The Complainant was not afforded the opportunity to rebut the suggestion that he had refused to attend a medical assessment, yet such a conclusion was reached. Moreover, it is evident that no fully informed sustainable resolution of the entire grievance would have been possible without due consideration of the potential disability issue.

The grievance outcome failed to address several issues specifically raised by the Complainant.

On the substantive issue regarding his objections to the changes to his work, his arguments regarding the conditions which he said he agreed with Mr. CP when he was recruited and to which, he contended he had become entitled over the two-year period since his recruitment though specifically raised by the Complainant as noted in the meeting minutes, were not addressed in the conclusions.

The Complainant’s suggestions regarding the possibility of working part-time, again specifically raised in the meeting minutes, were not addressed in the grievance outcome.

Although he was specifically named by the Complainant twice in the meeting minutes, Mr. C P does not appear to have been interviewed at all. Three other individuals were interviewed but their input was never put to the Complainant by the grievance decision-maker who made conclusions against the Complainant based on the response which he, and only he, had received from those individuals.  

Immediately after the grievance outcome a letter was written to the Complainant requesting medical certification. declaring his absence as “unauthorised” and making reference to disciplinary procedures whereas the Complainant had in fact been engaging with the grievance procedure during the relevant time of alleged unauthorised absence and in any event had been allowed to do so by the Respondent without medical certification. The letter was at best ill-considered and far from assisting with the resolution of the dispute between the parties, it directly prompted the Complainant’s resignation.

The Complainant’s resignation and subsequent correspondence raised a number of issues and made  specific allegations of bullying and harassment against  named individuals. On of those  individuals responded to the letter. No consideration was given to investigating this allegation as it was deemed already dealt with in the grievance.

An appeal was offered in the grievance outcome and repeated in the letter of response to the Complainant’s resignation. However the individual nominated to hear the appeal had been copied on the initial emails of the 7th and 8th of October 2022, he was named by the Complainant at the grievance meeting as a person with whom an agreement had been reached when the Complainant commenced his employment (that his hours would be nine to five) and he was also mentioned by the Complainant in another part of the same meeting in relation to another issue which was discussed at the meeting. Notwithstanding, he was held out as a person who was as the grievance decision maker described him in the minutes “a person who [was] still outside of all the process”. This was not the case.

The procedures offered to the Complainant including the appeal, when viewed objectively, did not constitute a fair, balanced or comprehensive response to the Complainant’s grievance.

The Complainant had requested external mediation from the outset. Although the involvement of a third party when necessary is specifically provided for in the Respondent’s Employee Handbook neither this nor any other external dispute resolution was undertaken by the Respondent. The reasons offered were: firstly, that the Complainant had agreed to the grievance procedure and secondly, that the Respondent formed the view that it could be handled internally. As to the Complainant’s agreement this cannot be construed as agreement in advance to participate in and pursue a process which was fundamentally flawed. As regards the Respondent’s view that the issue could be handled internally the best that can be said is that it was not in fact handled very well internally.

I am satisfied that the procedures which were offered and the manner in which the dispute was dealt with by the Respondent were inadequate and unfair. I find that the Complainant, when confronted with the grievance failings as well as the conduct of the Respondent before and after it, was justified in concluding as he did, that he had “no chance” pursuing his internal grievance further. I also find (as was submitted on the Complainant’s behalf) that his lack of faith in the Respondent‘s ability or willingness fairly to address his grievance was objectively justified. I consider that the circumstances of the present case bring it within the exceptional category of cases where, the Complainant’s failure to exhaust the procedures such as they were conducted by the Respondent, was justified. I further find that on an overall assessment of the manner in which the dispute which gave rise to the dismissal was handled generally by the Respondent, that it was reasonable for the Complainant to resign. Accordingly, I find that the Complainant was constructively dismissed. 

Redress

The parties were agreed at the conclusion of hearing that compensation would be the preferred remedy. I also find that there any form of redress involving a return to work on the part of the Complainant would be unworkable and inappropriate in the circumstances of this case. Accordingly, I deem an award of compensation to be the appropriate form of redress.

The Complainant gave evidence which was unchallenged to the effect that he commenced alternative work on the 1st of March 2023 and suffered losses in the sum of €10,769 between the date of his resignation and that date. From the 1st of March 2023 to date and continuing the Complainant said that he had sustained a yearly shortfall arising from a differential as between his former and his present salary in the sum of €2,500 per annum. In such circumstances I award the Complainant his full losses together with a sum representing one year’s shortfall in the sum of €2,500 salary making the total compensation award of €13,269 and the Respondent will be directed to pay the said sum to the Complainant by way of compensation for unfair dismissal.

CA-00055441-001

The Complainant was unfairly dismissed. The Respondent is directed to pay the sum of €13,269 to the Complainant by way of compensation for unfair dismissal.

Unfair Dismissal – Constructive Dismissal -  Unfair Dismissals Acts 1977 – 2015- Section 1 (b) - Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 332 -  Tusla v Flynn UDD1810 - Redmond’s Dismissal Law, [third edition Paragraph 19.14] - Conway v Ulster Bank Ltd UD 474/1981 (Kerr and Madden 2nd Ed p. 105)- Pungor v MBCC Foods Ltd UD584/25 - Aryzta Bakeries -v- Cacs UDD 181 - An Employee v An Employer ADJ-00038112 - Sales Manager -v- A Manufacturing Company (ADJ-00023644)- Travers v MBNA Ireland Ltd [UD720/2006] - Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132 - Allen v Independent Newspapers [2002] E.L.R. 84; May v Moog Ltd [2002] E.L.R. 261  Monaghan v Sherry Bros [2003] E.L.R. 293-  New Era Packaging v A Worker [2001]  E.L.R. 122) - Travers v MBNA Ireland Limited UD720/2006 - Fitzsimons v Mount Carmel Hospital, UD855/2007 - Failure to Exhaust Internal Procedures – Failure to Exercise Right of Appeal from Grievance Findings – Medical Assessment - Breach of Fair Procedures