Complainant

Respondent

Parties

Rosita  Karosiene

Louis Fitzgerald Hotel Ltd

Representatives

  Self

 Peter Bolger, Group HR Manager

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-00065625-001

27/08/2024

The Complainant commenced employment with the Respondent on 02/09/2022.  She was promoted to Assistant Front of House Manager on 09/12/2022.  She was paid €32,000.  She resigned on 15/03/2024 on the basis that she could no longer tolerate the manner in which her manager treated her.  She submitted a complaint of constructive dismissal to the WRC on 27/08/2024.

The Respondent submits that the Complainant was always treated fairly and respectfully.  She was promoted as the Respondent recognised her potential.  The Respondent submits that she was provided with assistance any time she raised a grievance and denies that she was constructively dismissed.

The Complainant gave evidence on oath at the hearing. The Complainant commenced employment on 02/09/2022 with the Respondent.  She was promoted to the role of Assistant Front of House Manager on 09/12/2022.  The Complainant provided the hearing with a detailed chronology of events from June 2023 which she submits led to her resignation on the basis that she could no longer tolerate the mistreatment by her manager.  This prolonged treatment caused her a lot of stress and had an impact on her health.  This resulted in her being certified as unfit to work. 

The Complainant submits that despite raising her concerns no meaningful changes were made and she believes that her complaints were not taken seriously.  Despite various meetings the mistreatment did not stop and the Respondent failed to take any action.  Her request for a formal investigation was put on hold.

The Complainant gave evidence that the chronology of events show that she was left with no option but to resign and as a result she had a loss of income.  She is seeking compensation for the suffering and financial loss she endured.

The Complainant gave evidence that she obtained employment on 19/03/2024 and is paid €30,000 and as this is less that what she was earning she has calculated her financial loss to be €1,500.

The Complainant was cross examined by Mr Peter Bolger on behalf of the Respondent.  It was put to the Complainant that since she raised her grievance she had a total of 5 meetings and this was clear evidence of a supportive response from the Respondent.  The Complainant stated that she did not feel supported and despite attending those meetings nothing changed and she highlighted this fact at every meeting.

It was put to the Complainant that the Respondent never ignored any issues that she brought up and there was a period of time when there were no issues highlighted.  The Complainant stated that it is her position that nothing changed and she confirmed that the reason there was no complaint for a period of time was because she did not put in any complaint.

The Complainant in her evidence raised an issue about working alone.  It was put to the Complainant that on the occasion she was alone the hotel was actually closed.  The Complainant stated that it was closed but she did not feel safe and she was also not aware that she would be working alone.  It was put to the Complainant that as an assistant manager she was aware of the roster and this would have shown that she was alone for  a short period of time.  The Complainant stated that no one brought this to her attention.

It was also put to the Complainant that on the second occasion she was alone she actually had the rosters for at least a month and she should have been aware of this.  The Complainant stated that she would not have known this as the Duty Manager and Deputy General Manager are not on the roster so she would not have known that they would not be on duty.

It was put to the Complainant that when she raised the issue about working alone with her General Manager she then went on sick leave and therefore she was not in a position to know what he had done about this.  The Complainant stated that she was not aware of any changes.

In a closing statement the Complainant stated that every meeting she attended she highlighted the issue of mistreatment and there was no change.  If she was supported there would have been some change but nothing changed and she found it very difficult to live with.  She did not enjoy her work and was always wondering what the next opportunity would be for her manager to mistreat her.

The Complainant stated that she was satisfied that she was able to present her chronology and all relevant information at the hearing.

The Respondent submits that the Complainant was always treated fairly and respectfully and her promotion was based on the potential that was recognised.  The Respondent continually worked with the Complainant to ensure she was successful in her new role.

As an Assistant Manager the Complainant would face challenges but she was always supported.  The Respondent’s HR and General Manager provided immediate assistance when the Complainant raised any grievance.  The Complainant was offered support during her employment.  The Respondent refutes the complaint that she was constructively dismissed or forced out of her role.

The Respondent noted that their submission contains copies of emails and meeting minutes which clearly demonstrate that the Complainant’s issues were not ignored.  During her period of sick leave the Respondent also initiated welfare calls to the Complainant.

CA-00065625-001:  The Complainant has submitted a complaint seeking adjudication arising from her constructive dismissal from her employment with the Respondent on 15/03/2024. 

The Law:

Section 1 of the Unfair Dismissals Act 1977, as amended, in relevant part, states as follows:

(1)                “In this Act –

“dismissal” in relation to an employee means – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal. 

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the Complainant to demonstrate that her resignation on 15/03/2024 was justified.

In supporting her decision to terminate her employment the Complainant will have to prove that the circumstances of his dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described as follows:

“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 entitles to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

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

Both of these tests have been followed by various Irish authorities.

In relation to breach of the Complainant’s contract of employment the Complainant’s evidence was that no breach occurred. 

In examining the conduct of the employer there was evidence that the Respondent had organised meetings in response to the Complainant’s grievance.  Some of these resulted in an understanding that the working relationship would be reset.  I note that a mediation meeting also occurred but the Complainant felt that she was obliged to attend.  The Complainant believes that regardless of what the Respondent says they had done the mistreatment did not cease.

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

There is no doubt that this was a difficult situation for the Complainant.  She had worked for the Respondent for just over 18 months and was clearly recognised as a competent employee. I am satisfied that the Respondent was entitled to conduct the investigation and there were no issues raised in relation to this by the Complainant.

Based on the evidence and the authorities cited, I find that the Complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp 91978) IRL 332. 

It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”.   The Complainant did raise her issues on a number of occasions but I am not satisfied that she utilised the procedure as per the company handbook.

I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

CA-00065625-001:  I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

Constructive dismissal