Complainant

Respondent

Parties

Shauna  Kelly

Duduk Ltd t/a Mani Restaurant

Complainant

Respondent

Anonymised Parties

Representatives

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-00064752-001

13/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064752-002

13/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00064752-004

13/07/2024

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

CA-00064752-005

13/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064752-006

13/07/2024

The complainant referred these complaints on 13 July 2024 and a remote hearing was scheduled for 10 October 2024. The complainant and the owner of the restaurant at the time of the complainant’s employment attended the hearing.

Mr Mazhar Baig owned the restaurant at the time of the complainant’s employment with the respondent. He said he had sold the restaurant and was no longer involved in the running of the restaurant. He said he had not received any correspondence in relation to the complaints, as they were sent to the restaurant. He further said that Duduk Limited was in liquidation.

The CRO CORE website showed that Duduk Limited was not in Liquidation and gave the Company’s status as “Normal”. I therefore determine that the correct respondent was given by the complainant. I accepted that the respondent had not received the correspondence, even though it had been sent to the Company’s registered address.

In these circumstances I arranged for the correspondence to be sent to Mr Baig by email and for the hearing to re-scheduled. The hearing took place on 10 December 2024.

The complainant started working for the respondent on 9 June 2023 as a Pastry Chef. She left her employment on 11 June 2024.

Unfair Dismissals Act: the complainant submits that due to a build-up of anxiety and stress caused by working in a hostile environment she left her employment on 11 June 2024. On 12 June 2024 she sent a text message to the owner, manager and head chef advising them she would not be returning to work and said this was because of how she was treated. She submits the head chef verbally abused her, made derogatory remarks to her and about her within her hearing. She says she was bullied within the meaning of the Safety, Health and Welfare at Work Act, which requires employers to prevent any improper conduct or behaviour likely to put her welfare at risk.

Some of the comments were pornographic in nature and others were of a sexual nature in her day-to-day work environment. The general behaviour of the head chef also created a hostile working environment, in which the complainant was afraid of the head chef. On 10 June Ms Kelly told the head chef that she could not take him speaking to her in the tone he was. He said OK but then shut down further communication. He ignored her the following day.

The complainant submits she was not aware of the correct procedure to raise her concerns. She had never been given a contract of employment, an employee handbook or copies of any company policies or procedures. She was unaware of the grievance process.

She had, along with a colleague, informally discussed the head chef’s behaviour with the Restaurant Manager. The Restaurant Manager asked if she had ever mentioned this to him directly. The complainant said she hadn’t. Previously, when the head chef was shouting at and about the complainant the Restaurant Manager said that she had asked the Maître d’ if she should approach the head chef and was advised not to approach him saying that the complainant “is a big girl”.

The complainant submits that the head chef’s behaviour had such an effect on her that she was not sleeping, constantly afraid of the attitude and behaviour she was facing when attending work. In these circumstances she says she had no choice but to leave and this amounts to constructive dismissal.

Terms and Conditions of Employment: the complainant submits she was never furnished with her terms and conditions of employment. She asked the Restaurant Manager about this and was told the owner was putting the finishing touches to the contract, but no contract was issued.

Equal Status Act and Employment Equality Act: the complainant submits that much of the verbal abuse outlined in her unfair dismissal complaint was of a sexual nature amounts to discrimination and harassment on the grounds of gender.

She submits the respondent was well aware of how the head chef was behaving, as it took place in the kitchen in full view and listening of all the other staff. The respondent is therefore responsible for his actions and should have taken the appropriate steps to protect her from his behaviour.

Payment of Wages: the complainant submits that when she left she was not paid her outstanding leave entitlement.

The respondent submits the complainant left of her own volition. He said there was a lot going on in the kitchen but he was always aware of a good environment. He had never heard of the head chef’s behaviour as described by the complainant. If he had been aware of such behaviour he says he would have taken action. He says the complainant was paid all the wages she was due.

Unfair Dismissals Act: 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 terminating her 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[1]. It comprises of two tests, 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.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

Firstly, from the complainant’s credible evidence, the behaviour of the head chef was unacceptable in a work environment. The respondent only said in very general terms that the restaurant had a good environment and he was unaware of the head chef’s behaviour.

The complainant submits that she raised the matter informally and nothing was done. On another occasion she was indirectly told she would have to deal with this herself, or put up with it. The complainant was not given a contract of employment and was not aware of any procedures to pursue her grievances. In these circumstances I understand the complainant felt very much on her own and had no recourse to grievance procedures

Having regard to the two tests identified above, I find that the Complainant has established that the Respondent’s conduct was so unreasonable or was such that she had no option but to resign and was such as to show that it no longer intended to be bound by one or more of the essential terms of a contract. In the circumstances, I find that the Complainant was constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation in the full circumstances of the case. Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

“(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

The complainant made efforts to find employment and did so four weeks after she left the respondent’s employment. The hourly pay was the same (€15 per hour) but she was working 10 hours per week less than she was with the respondent at the end of her employment. Also, the new job was 15 miles further away.

Taking all of the factors set out above into account, I award redress of €6,240.00 as just and equitable compensation for the unfair dismissal.

Terms and Conditions of Employment: I accept the complainant’s evidence that he did not receive her terms and conditions of employment, as required by the legislation. I find this complaint is well founded and award redress of four week’s pay: €2,340.

Equal Status Act: the complainant was employed by the respondent and therefore she has no claim under the Equal Status Act.

Employment Equality Act: the complainant has made complaints of discriminatory treatment on the grounds of gender. However, she has failed to show how this treatment was different from someone of a different gender.

Payment of Wages: the complainant was not paid for 84 hours accrued annual leave when her employment with the respondent came to an end.

Unfair Dismissals Act: for the reasons given above I find the complainant was unfairly dismissed and I award compensation of €6,240.

Terms and Conditions of Employment: for the reasons given above I find this complaint is well founded and award redress of four week’s pay: €2,340.

Equal Status Act: the complainant was employed by the respondent. Therefore, her claim under the Equal Status Act has no chance of success and I find I have no jurisdiction to investigate the complaint.

Employment Equality Act: the complainant has made complaints of discriminatory treatment on the grounds of gender. However, she has failed to show how this treatment was different from someone of a different gender. I therefore find she is unable to prove a claim of discriminatory treatment.

Payment of Wages: the complainant was not paid for 84 hours accrued annual leave when her employment with the respondent came to an end. I find this complaint is well founded and I award redress of €1,260.

Constructive Dismissal