Complainant

Respondent

Parties

Mr Stephen  Brannigan

 Liffey Field Limited

Representatives

William Wall Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060552-001

13/11/2023

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

CA-00060552-002

13/11/2023

The Complainant worked as food and beverage operations manager for the Respondent from the 5th of July 2022 until his resignation on the 9th of July 2023.

The Complainant has brought a complaint under the Unfair Dismissals Act alleging he was in fact constructively dismissed and another under the Payment of Wages Act for outstanding time off in lieu (“TOIL”) payments.

The Complainant attended the hearing and made written submissions beforehand. He gave evidence under affirmation and was cross examined.

He outlined four reasons which combined forced his constructive dismissal. 

1. The Respondent’s HR Manager was on maternity leave while carrying duties and interacting with him. He believed she did not have legal authority to be corresponding with him or reviewing his information.

2. He submitted a a grievance on 13th of June 2023. He never received any confirmation or response to this document from the Respondent.

3. The Respondent instigated a disciplinary process against him without having adhered to fair or proper procedures.  

4. The Respondent failed to pay him for a number of weeks and then paid him in a single lump sum without any explanation.

The Respondent attended the hearing and made written submissions.

CA-00060552-002

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

Thiis is outlined in section 1 of the act which defines dismissal as to include:

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,

It is important to note that the above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer.

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“is that the employer must act reasonably in his treatment of his employees. If he 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. He can go, with or without giving notice, and claim compensation for unfair dismissal”

Findings following the Complainant’s evidence.

The Complainant was on annual leave and scheduled to return to work on May 6th, 2023. While on leave, he was contacted by the Respondent’s HR manager and told that he was suspended. The communication did not detail any allegations against him only stating that further information  would be provided. He subsequently received an email outlining that there was an ongoing investigation into his actions on a certain date, the 29th of April.

On May 9th, the Complainant received an email inviting them to a meeting on May 10th. This email contained an allegation that he had been drinking on the premises. The email was clear that he was being asked to attend a disciplinary hearing which could result in his dismissal. The Complainant attended the meeting accompanied by a colleague. Upon arrival, the HR informed them that they could not enter the meeting together as the colleague was also involved.

It was around this time that the Complainant’s pay was stopped.

On May 16th, the Complainant received a further email inviting him to another disciplinary hearing the next day. The Complainant did not respond immediately as he was shocked and sought more information. He was concerned that the HR manager was on maternity leave and therefore he was not sure she should carry out these duties.

I am of the view that this was none of the Complainant’s business. It was a matter for the HR manager and her line manager to determine her working patterns and how much maternity leave she was going to take. The Complainant had no entitlement to ignore any request from management because he himself wasn’t sure whether the relevant manager should be protected leave at the time.

The Complainant did not attend that meeting nor inform the Respondent that he would not attend the meeting.

Up until this point it is clear that the Respondent had tried to carry out a procedurally unfair and unsound disciplinary process. However, from late May there was an obvious attempt to mend their hand.

On May 26th, the Complainant received a WhatsApp message stating that no disciplinary decision had been made and asking them to get in touch. The Complainant did not respond to this.

On May 30th, the Complainant received a call which they did not answer, preferring not to have verbal contact.

On June 13th, the Complainant sent a grievance letter to the Respondent which was not acknowledged. This complained about his non-payment while on suspension, the unfair disciplinary process and his assumption that the HR manager had dealt with him while she was supposed to be on maternity leave. He sent a follow-up on June 15th, highlighting continued missed payments and reminding the Respondent that it was illegal not to pay him when they suspended him. The Respondent then paid his outstanding salary at the end of June.

The Respondent then wrote to the Complainant again seeking to get him to engage with them, in what was now an investigation, not a disciplinary hearing.

The Complainant was invited to an investigation meeting scheduled for June 26th, to which he confirmed attendance on June 23rd. Upon arrival on June 26th, no one was present in the meeting room. The Complainant waited for 20 minutes and took a timestamped photo to document their presence. They received no communication from the company regarding the missed meeting. It turned out that the HR Manager had a serious family emergency that she had to attend to.

A further meeting was arranged for June 30th, which the Complainant attended with a witness. The Complainant requested minutes of the meeting from the HR Manager and a copy of the handwritten notes from the note-taker.

During the June 30th meeting the HR Manager tried to move the conversation to an off the record one.  The Complainant was not interested in facilitating this and admitted to having had a drink as alleged. The meeting lasted approximately 12 minutes, during which little was clarified about the next steps. The Complainant took a photo of the notes and left.

On July 5th, the Complainant contacted the company about a further missed salary payment. They received a response on July 6th indicating that the issue would be addressed with the wages department. By this time, the Complainant had lost trust in the process. He was contacted and told he was scheduled to return to work on July 11th but had to attend a disciplinary hearing. He was explicitly told that dismissal was not a potential outcome of this hearing.

On July 9th, the Complainant resigned.

Constructive Dismissal

As outlined above, the onus is on the Complainant to establish that there was unreasonable behaviour by the Respondent which forced him to resign. While he has established that the Respondent acted unreasonably his evidence pointed to those issues having been mostly resolved at the time of his resignation.

The failure to pay him while on suspension was a serious issue but the Respondent had already remedied this and paid him his outstanding pay. They had also lifted the suspension by the time he resigned.

The disciplinary process initiated in early May was obviously flawed but no sanction arose from that. By June the Respondent had clearly addressed these issues and held an actual investigation. It appears likely they didn’t even want to that to go ahead with that but the Complainant insisted on completing the meeting as a formal investigation and admitted to having had a drink of the premises. The Respondent then made clear that this was not going to result in his dismissal. It may have resulted in a lesser sanction but there is nothing particularly unreasonable about that possibility.

As I have outlined before, the Complainant was not entitled to take a view on the HR manager’s maternity leave. It could not be the basis of a constructive dismissal claim.  

The only remaining issue which was live at the time of the Complainant’s resignation was that the Respondent had not yet acknowledged the Complainant’s grievance, some four weeks since it had been lodged. While I agree with him that the Respondent should have sought to address this grievance in a timely manner, I do not accept that this omission was serious enough for it to be reasonable for them to resign and claim constructive dismissal.

CA-00060552-001

The Complainant was a salaried employee. When he was promoted to this role in October 2021 he was given a letter confirming:

Additional hours worked above 40 hours will be given to you as time off in lieu. This letter is your official confirmation that in any event when you would like to use your accrued TOIL – please use holiday form for this purpose and specify T for TOIL hours.

As per your written statement of main terms, Bonnington Hotel Dublin will make sure that all additional time worked will be stored in out Timepoint system as TOIL.

Our Payroll Manager Ger, will be able to do internal calculation at any stage to confirm your TOIL accrued to date.

The Complainant was extremely busy while working in this role. From October 2021 hospitality was booming post-covid. He had taken some days as TOIL leave but had a huge difficulty in taking leave in general.  He enquired into his TOIL just before May 2023 and was told he had accrued some 400 hours. The Respondent tried to cross examine him on the specific times he worked over his core hours and accrued TOIL but in light of the above letter I don’t believe it was necessary for him to show in detail when he accrued what. The Respondent clearly has records of this. The dispute arises because the Respondent’s refused to pay the Complainant’s outstanding TOIL after he resigned. In a letter dated the 19th of September they outlined that his request for payment on this matter cannot be accommodated as TOIL is taken as time off and no paid in lieu.

Section 6 of the payment of wages act provides that an unlawful deduction of wages occurs where:

the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act),

As such the key question regarding the Complainant’s TOIL benefit is whether it was properly payable to him on cessation as a lump sum payment. He has failed to establish that that entitlement existed. It is not provided for in the letter setting out the TOIL scheme nor in any policy or contract that he has referred to.

CA-00060552-001

The complaint is not well founded.

CA-00060552-002

The complaint is not well founded.