UDD2129

1. Appeal of Adjudication Officer Decision No(s). ADJ-00024326 CA-00031044-001.

BACKGROUND:

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 15 June 2020 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place in a virtual setting on 31 March 2021. The following is the Determination of the Court:-

DETERMINATION :

Background

The Complainant commenced employment with the Respondent in July 2017 as Head Chef in their restaurant. It is the Complainant’s submission that the manager of the restaurant where she was employed was difficult to work with. She had made complaints about some engagements she had with him, but her complaints were not addressed by the Respondent. It was the Complainant’s submission that she had no choice but to leave her job.

Summary of Complainant’s case

The Complainant submitted that she had no option but to hand in her notice of resignation on the 31^st May 2019 and to work her two week notice period. In her evidence to the Court the Complainant stated that she had received a final written warning in February 2019 because during an inspection the performance of the kitchen was found not to be up to standard.

This was the first time the Complainant had ever received a warning. She appealed the warning as she felt it was too severe for a first warning, but her appeal was unsuccessful.

It was the Complainant’s evidence that on the 16^th May she made a complaint about Mr Curly the manager and the way he was interacting with her on a regular basis. It was the Complainant’s evidence that she complained to a senior manager about Mr Curly swearing and his aggressive behaviour to her. It was her evidence that she had raised issues on one or two occasions previously and she was aware that Mr Curly had been spoken to informally.

It was the Complainant’s evidence that she received an email back stating that the issues she raised would be looked into. She was told that she would need to put it all down it writing which she did, and she set out four examples. On the 18^th May she received an email from the General Manager which advised that he needed to investigate the concerns she had raised, and he would have to do that first before he could answer her question about what happens next.

It was her evidence that things calmed down for a few days but then went back to the way they had been. It was the Complainant’s evidence that she did not receive any update on her complaint and at the end of May she decided to leave. A few days before she resigned the owner of the restaurant came in for lunch. She met with him and asked him “how do you please Mr Curly” and that she had not received a satisfactory answer. At that point she did not believe the situation would change.

The Complainant worked her two-week notice period as she felt it was the right thing to do. The Complainant notified the Respondent both verbally and in writing of her resignation. It was her evidence that she sent an email to the owner and to Mr Curly handing in her notice. The Complainant left work on the 14^th of June 2019 and commenced another job about a week later.

The Complainant confirmed in her evidence that sometime after she had left that she had contacted Mr Curly looking for her job back. In response to a question from her representative the Complainant’s evidence was that a letter that was submitted and identified by her representative as having been sent by email to the Respondent on the 16^th June 2019 that in fact she was not sure when it was actually sent, that she had gone back through her emails and could not find it but that she was pretty sure she had sent it to the Respondent.

It was put to the Complainant in cross examination that there were a number of complaints in respect of the kitchen from July 2017 to February 2018. As a result of those complaints three mock inspections took place, the first in May 2018 which identified a number of issues that required improvement. After that review Mr Curly had a conversation with her about the issues highlighted in the inspection. The Complainant confirmed that was correct. It was put to the Complainant that a second inspection had occurred in October 2018 and that a number of the same concerns arose again.

It was the Complainant’s evidence that she did not accept that the issues were the same. In respect of the third inspection in January 2019, it was put to the Complainant that the results were the worst of all three reviews and that was what triggered the investigation and disciplinary process that led to her receiving a final warning. It was the Complainant’s evidence that she thought there had been improvements in terms of the outcome of the third inspection. It was put to the Complainant that after she received the final warning that standards in the kitchen had improved. The Complainant accepted that.

It was put to the Complainant that despite being asked to, she had not put her complaint in writing and that the Respondent did not receive the letter she was seeking to rely on. The Complainant submitted that she was not one hundred per cent sure she had sent the email, or when she had sent it, but she thought she had sent it after she resigned. Nor could she explain why she could not find the email she sent the letter in other than she was not very organised on her computer.

The Complainant could not explain why if she sent it by email the Respondent did not receive it. It was put to the Complainant that the email from the General Manager on the 18^th May indicated that the issues were being dealt with informally. The Complainant did not dispute that the email was headed informal issue. In respect of her letters of resignation she accepted that there was no mention of the issues she was having and that the letters would suggest they were all on good terms.

It was the Complainant’s evidence she does not like confrontation and was being diplomatic. The Complainant again confirmed that a week after she left the Respondent’s employment, she rang Mr Curly looking for her job back. The Complainant also accepted that she had asked for a reference and had received a positive reference.

The next witness for the Complainant was Mr Vasey who was a Junior Sous Chef in the restaurant from September 2017 to September 2019. It was his evidence that on the 29^th April 2019 a staff meeting was called for 17.00 hours. As best he could recollect it was a Monday so the Restaurant would not be open that evening. The meeting was late starting as an off-duty member of staff was running late.

It was his evidence that Mr Curly was unhappy with the delay and said “why the heck am I hear” the meeting eventually proceeded. On the 2^nd May 2019 there was an incident in relation to a kitchen worker looking for carrots. The Complainant pointed to the kitchen fridge and advised that’s where she would find them. The kitchen worker did not locate the carrots. Mr Curly walked down and wanted to know what was going on, he passed comment that there were too many people in the kitchen, and he would have to start sending people home.

The Union representative then submitted to the Court that the Complainant had met the test for constructive dismissal as set out in Western Excavating(EEC) Ltd v Sharpe [1978] IRL 332. He also drew the Courts attention to the cases of Murray v Rockabill Shellfish Ltd [2012] ELR331 and Brady v Newman UD330/1979 both of which dealt with the reasonableness of the behaviour of the employer.

Summary of Respondent’s case

The Complainant was given a final written warning in respect of her failure as Head Chef, to keep the kitchen operating at the appropriate standard which is a key requirement in the restaurant trade. Following on from that warning, standards did improve but the Complainant did not seem to be happy in her job. At the end of a meeting on the 13^th May 2019 which was arranged in respect of an operational issue the Complainant informed a senior manager that she was experiencing problems with the manager Mr Curly.

On the 16^th May 2019 the Complainant forwarded three emails to the General Manager which outlined her concerns. The General Manager replied by email on the same date noting that further to their conversation of that date that the Complainant did not want to raise a formal grievance.

The Complainant was advised that if she changed her mind, she should submit a formal grievance in writing to a named person. The Complainant never contacted the named person to submit a formal grievance. Mr Curly who works as a Manager in the Respondents restaurant in his evidence to the Court stated that they arranged for mock inspections to be carried out as they had received a number of complaints. The inspections were in respect of the restaurant as a whole, and not just the kitchen area.

The first inspection in May 2018 identified a number of areas that required improvement. The second inspection in October showed improvement in some areas, but some areas in the kitchen had actually disimproved. In January 2019 three key areas had dropped again.

It was Mr Curly evidence that after the second inspection he had sent an email dated 24^th October 2018 to the Complainant highlighting the areas that needed to improve, setting out what her responsibilities were and advising that if there was not an immediate improvement, she could be subject to a disciplinary investigation.

After the third audit he instigated an investigation and met with the Complainant. When his investigation was completed, he passed on the outcome of same to the General Manager who dealt with the disciplinary issues. It was his evidence that he had a good working relationship with the Complainant until she received the final written warning in February 2019.

It was his evidence that after that the Complainant seemed disinterested in her work and either was not coming into work or was coming in late. A kitchen management meeting was scheduled for the 30^th May 2019. Immediately prior to that meeting the Complainant came to him and advised that she was unhappy in the job and that she had found a new job in a nearby restaurant starting in two weeks-time.

It was Mr Curly’s evidence that he asked her to reconsider her decision to resign. However, the next day she confirmed to him that she was resigning. About a week after she had finished working for the Respondent, he received a call from the Complainant looking for her job back. He advised her that the position had been filled but that she should talk to the Owner when he returned from holidays.

It was put to Mr Curly in cross examination that there had been a fourth Inspection in April 2019 which had a good outcome. Mr Curly confirmed that there had been improvement and that he had sent the outcome of the inspection to the Complainant and that he had noted the improvements.

It was put to Mr Curly that if the earlier inspections had been passed then there would not have been any disciplinary action. Mr Curly accepted that, as, if they had passed the inspection it would mean there were no issues of concern in the kitchen. Mr Curly was taken to minutes of a meeting on the 15^th January 2019 between himself and the Complainant with one other person in attendance and was asked if he could explain why there were two different sets of minutes both proposing to be minutes of the same meeting. Mr Curly could offer no explanation for same.

The representative for the Respondent submitted to the Court that the Complainant had resigned and had not been constructively dismissed. The Respondent relied on Ruffley v the Board of Management of Saint Anne’s School [2017]IESC 33 which noted that “Bullying is not about being tough on employees.

Appropriate interventions may not be pleasant and must simply be taken in the right spirit” The Respondent also sought to rely on the case of Conway v Ulster Bank UD474/1981 which noted that the Complainant should have used the grievance procedure to remedy her complaints and OCS One Complete Solution Ltd v Puka UD/19/30 which looks at the conduct of the Respondent. It was the Respondent’s submission that the fact the Complainant sought to return to her job a week after she left indicated that she had no issues with the conduct of the Respondent.

The applicable law

Section 1 of the Act defines constructive dismissal in the following manner

“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,”

Section 6(1) of the Act states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, 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 regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”.

In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must 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.

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 is justified in leaving. There is no submission from the Complainant to the effect that there was a significant breach going to the root of her contract.

Discussion

The question that arises for decision in this case is whether, it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct.

 The Complainant in terms of invoking the grievance procedure is relying on a conversation and emails she sent to the general Manager on the 16^th March 2016 and a letter she alleges she submitted to the Respondent on the 16^th June two days after her employment had ended. However , in her sworn evidence she confirms that she is not a hundred per cent sure that she actually sent the letter and that she has been unable to locate same in her emails despite having searched same. The Complainant also gave evidence as to being unsure as to whether she had sent the email before or after she left the employment.

The Respondent was emphatic that the first time they saw the letter was when it was produced at the first instance hearing. In the circumstances the court finds that it cannot attribute any weight to that letter. In respect of the conversation and the three emails sent to the General manager the Complainant did not dispute as reflected in the email from the General manager that she had indicated that she did not want the issues dealt with formally. She also confirmed that she was aware, that Mr Curly had been spoken to.

The Court also notes that the Complainant had contacted Mr Curly a week after she had left seeking her job back.

Findings of the Court.

The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submissions made by the parties.

 In constructive dismissal cases, the Court must examine the conduct of both parties. 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. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UDA474/1981).

In Beatty v Bayside Supermarkets UD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment. The Complainant had raised a complaint and within two weeks of same had found another job and handed in her notice. Within that two- week period the Complainant had indicated that she wanted the issues she had raise addressed informally and was aware that the manager she had complained about had been spoken to. The Complainant also contacted that manager for a reference on her last day in work, and a week later contacted him seeking to return to her old job.

Determination

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. Accordingly, the court must hold that the Complainant’s employment did not come to an end by dismissal.

The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
19 April 2021	Deputy Chairman