ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00019685
A Head Chef
A catering company
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 23/05/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 6th February 2019, the complainant referred complaints pursuant to the Unfair Dismissals Act and the Payment of Wages Act to the Workplace Relations Commission. They were scheduled for adjudication on the 23rd May 2019. The complainant attended the adjudication. The respondent was represented by Ann-Marie Burke, IBEC and the HR Business Partner, the operations manager, the area manager and the head of operations gave evidence on its behalf.
In accordance with section 41 of the Workplace Relations Act, 2015 and section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant worked as Head Chef for the respondent between the 6th November 2017 and the 23rd January 2019. He was paid €1,080 per week. The complainant asserts that he was constructively dismissed and is due overtime pay. The respondent denies the claims.
Summary of Complainant’s Case:
The complainant outlined that he is here to prove that he left his employment for good reason. He made many complaints to the respondent over issues, such as allergens. The Food Development Chef had added in allergens that were not listed on the product, for example peanuts and sesame seeds. This posed a real risk. The complainant reported this to the area manager, the unit manager and the Head of Operations and also spoke with the Food Development Chef. Their response was ‘you are the head chef’ so it was his responsibility but that he should not create trouble.
The complainant outlined that any input for a menu starting on a Monday must be completed by the previous Wednesday, so that there is time for delivery on the Friday. He outlined that there had an issue with allergens since when the unit manager started in May 2018; this manager did not work as part of a team. There had been no issue under the previous manager.
The complainant referred to the “know your allergens” document regarding the five steps for front of house and back of house. He said that the unit manager should sign off on the daily paperwork, for example the HACCP document. The complainant said that he started complaining to the unit manager in June 2018. As an example, he referred to the email of the 20th July 2018 regarding a risk assessment and copied this to the area manager.
The complainant said that in 2018, the premises had been deep cleaned by an outside company. This followed the emails about recruiting more staff and the old equipment. He said that the client had raised issues which were not addressed in time for the audit. The auditor found no major issue in the kitchen, but there were some minor issues, for example with a training file or risk assessment. Allergens was missing from documentation at one coffee shop. The audit was a ‘fail’ and this created trouble.
The complainant said that he had signed off on the documentation. He said that there should also be a HACCP team and one person cannot be responsible for it all. These defects would have been identified if the planned gap audit had taken place in June. The complainant did not know why this did not take place.
The complainant said that he raised a grievance as he felt ignored and bullied. The complainant said that he had asked for help. He said that his complaint regarding allergens was upheld, although he only learnt this in the week preceding the adjudication. The complainant said that he lodged the grievance at the same time he submitted his notice. He did not wait for the grievance process as the situation was dangerous; he feared a food poisoning prosecution. The area manager told him that it was all his responsibility. The complainant said that he could not take this risk. The complainant resigned on the 16th January and finished a week later, after working the full week.
The complainant said that he met the area manager on the last day regarding his appeal of the warning. He had received a final written warning because of the allergens issue and the audit. He said that the warning was downgraded to a first written warning following the appeal.
The complainant said that following his resignation, he started new employment after two weeks. He had difficulties obtaining a reference. He had since lost this employment and was in receipt of social welfare.
In respect of the Payment of Wages complaint, the complainant outlined that the contract provided for overtime and a Sunday premium. He was the only person trained in allergens so had to work over the weekend to prepare for the week to come. In September 2018, he lost his clock-in card and was refused a new one. He was not paid for all the hours he worked, around five hours extra per week. He stated that his rate of pay was €26.91 per hour and contracted for a 40-hour week. He said that he worked a good 50 hours per week.
The complainant said that he received an email from the area manager to no longer report to her and to report to the unit manager. This was a problem as the unit manager refused to engage in health and safety. This email was sent sometime in the summer.
The complainant outlined that he would create an allergen chart from source and prepare labels on a shared computer. He said that the allergen chart was correct, but one label was not correct.
The complainant said that there was an improvement when the new unit manager started in November 2018 but there was always a risk that the development chef would show up and serve dishes without allergen information. This occurred again in January 2019, as had happened in October and November. The complainant said that he had to take responsibility as Head Chef.
The complainant said that he had raised these issues with the development chef many times and had asked for help many times. He said that he did not raise them in a formal grievance.
The complainant raised the grievance outcome of the 10th May 2019, the grievance meeting of the 29th November 2018 as well as the correspondence of the 17th November 2018 and the 24th July and 21st May 2018.
Summary of Respondent’s Case:
The respondent outlined that the complainant raised issues in a grievance and some of these were upheld. He raised other issues after the ending of his employment. The complainant had not raised the threat of prosecution for food safety breaches.
In submissions, the respondent outlined that it provides onsite catering and facilities management to clients. The complainant worked as Head Chef from the 6th November 2017 to the 23rd January 2019. He had responsibility for the management of the kitchen of a large client. He was paid €1,080 per week and typically worked a 40-hour week.
The respondent submitted that along with the unit manager, the complainant had overall responsibility for the efficient and safe management of the unit. The internal audit of the 26th September 2018 identified eight major non-conformances, including relating to allergens, food storage and HACCP records. The investigation referred the matter to a disciplinary process.
Following a period of sick leave, the complainant submitted a grievance on the 5th November 2018 raising the allergen issue and challenged the allegations considered at investigation. The respondent issued the outcome to the grievance on the 29th November 2018, partially upholding some of the complaints, but held that the complainant was responsible for the accuracy of the allergen information.
The disciplinary process resumed on the 5th December 2018 and this led to a final written warning, as the failure to follow the correct allergen protocols could have serious implications for customers or the client. The complainant appealed this finding but resigned before the appeal hearing could be scheduled. He challenged the appropriateness of one manager hearing the appeal, so another manager was appointed. On appeal, the warning was reduced to a level 1 written warning.
The complainant declined to attend the grievance meeting scheduled for the 23rd January as his notice was expiring and on a second scheduled date. The grievance was heard on the 11th February 2019, when the complainant had referred the WRC complaint.
The respondent cited the two-pronged test for constructive dismissal (repudiation of contract and reasonableness). Relying on Conway v Ulster Bank UD474/1981, the respondent submitted that it had acted within the terms of the contract of employment and did not repudiate it. The respondent outlined the reasonableness test required consideration of whether the employer had behaved unreasonably and whether it was reasonable for the employee to resign. Citing McCormack v Dunnes Stores UD 1421/2008, this required the employee to ‘exhaust’ all internal procedures and to demonstrate that it was intolerable for the employee to continue in employment. The respondent submitted that it had acted reasonably at all times and that the complainant had resigned in haste. It relied on Travers v MBNA Ireland UD 720/2006 to submit that there is an obligation to exhaust a grievance procedure even where breach of contract is being claimed. Citing Fitzsimons v Mount Carmel Hospital UD855/2007, the respondent submitted that it had urged the complainant to reconsider his resignation and offered to continue the investigation.
In respect of the Payment of Wages claim, the respondent said that it first became aware of this issue in the complaint form. It had not been raised with the respondent previously. It ascertained that the clocking in records could not be found. It submitted that management was required to approve overtime, as provided for in the contract of employment. The respondent stated that during the 14-week period the complainant asserted he worked this overtime; the development chef had been assigned to the kitchen and the complainant had also taken leave. It followed that any overtime would have been ad hoc and was not approved by management. The amount claimed of €10,000 amounted to 200 hours in this 14-week period; by comparison, the complainant had claimed overtime of only 68 hours in the 8-month period of February to September 2018. It submitted that the claim pursuant to the Payment of Wages Act was without merit.
At the hearing, the respondent outlined that the kitchen failed on 8 grounds. The unit manager resigned in November 2018. The respondent outlined that several colleagues were trained in allergens and there was no need for the complainant to work over the weekend. No overtime was paid from September to when the complainant’s employment ended. The complainant was not required to work hospitality events at this time.
The ‘Know Your Allergens’ document is an old, discontinued document. The respondent said that the head chef now had ultimate responsibility. There had been an allergen issue at the time of the audit and the respondent accepted that there were issues with the unit. It stated that the unit manager was also brought through a disciplinary process and later resigned.
Evidence of the area manager
The area manager said that she was not aware of the development chef putting peanuts in a dish. She was on parental leave in July and August. She had handed over her functions to the operations manager, who took up the role on this site after he heard the disciplinary process. The issues with the development chef were first raised on the 29th January, while the complainant had left on the 23rd January.
Evidence of the operations manager
The operations manager said that he acted when there were issues, for example arising from client expectations. The respondent was threatened with losing the contract and there was an ongoing issue with the client. The operations manager outlined that the issues identified with the development chef were separate to those involving the complainant. This issued was raised after the complainant’s resignation.
Findings and Conclusions:
This is a complaint pursuant to the Unfair Dismissals Act. The complainant resigned by email of the 16th January 2019. The complainant cited being harassed by senior management following the audit and challenged the manager chosen to hear the appeal of the warning. On the 18th January 2019, the respondent asked the complainant to reconsider his resignation. It acknowledged the complainant’s dissatisfaction with the manager appointed to hear the appeal and appointed someone else to hear the appeal. It asked for more information about the allegation of harassment and scheduled a grievance to hear this. The complainant’s employment ended on the 23rd January 2019. There followed a grievance process, including the grievance meeting of the 11th February 2019 and the outcome letter of the 10th May 2019.
Constructive dismissal – legal tests It is clear from the case law, most notably, Western Excavating (ECC) Ltd v Sharp  IRLR 27 and Conway v Ulster Bank UD474/1981, that there are two distinct tests for constructive dismissal. They are known as the ‘contract’ and the ‘reasonableness’ tests. They have in common that the onus falls on the employee to meet either test. They are, however, separate tests.
In a claim of constructive dismissal, it falls on the adjudication officer to determine if the employee has met either test. In practice, however, parties may hone their submissions on one or other of the tests (as occurred in McCormack v Dunnes Stores UD1421/2008).
Constructive dismissal - Contract test
Western Excavating (ECC) Ltd v Sharp summarised the ‘contract test’ as: “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.” It is important to note that the contract test requires repudiation of contract and not merely breach of contract.
Where repudiation of contract is under consideration, it might often be the contract term of mutual trust and confidence that is being considered. After all, mutual trust and confidence is an implied term in every contract of employment (see Berber v Dunnes Stores  ELR 61).
In Berber, the Supreme Court held “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”
Moreover, the Supreme Court in Berber set out the following approach in assessing whether a contractual term of mutual trust and confidence was repudiated or broken by an employer’s conduct:
“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. 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.”
Constructive dismissal – reasonableness test
In Western Excavating (ECC) Ltd v Sharp, the ‘reasonableness test’ provides that the conduct of the employer should be assessed 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.” The reasonableness test requires the complainant to have “substantially utilised the grievance procedure to attempt to remedy her complaints” [Conway v Ulster Bank UD474/1981]. The reasonableness test requires an assessment of the employer’s conduct and the extent to which the employee sought to utilise procedures and raise her concerns.
Application to the instant case
As set out above, it falls on the complainant to show that he was constructively dismissed from his employment. This is to be considered with reference to the two, distinct tests.
It is clear that there were ongoing issues with the operation of the kitchen. This came to a head with the failed audit of September 2018. This led to a disciplinary investigation involving the complainant. It is clear from the minutes of the disciplinary meeting that the focus of the disciplinary action was the allergens and not the frozen food and HACCP issues, even if the final written warning cited all the issues. The complainant successfully challenged the level of sanction and this was downgraded to a first written warning. At this time, the complainant participated in the grievance process and some of the grievances were upheld. The second grievance process was offered by the respondent in response to the complainant tendering his resignation and completed following his resignation. The unit manager was replaced and later resigned. The complainant indicated that the same issues had not been occurred again under the manager who replaced the unit manager. There were issues with the involvement of the development chef in the kitchen, in particular not adhering to allergen requirements.
Taking the tests in turn, I find that the complainant has not established that the respondent repudiated the contract of employment. As submitted by the respondent, I find that the respondent acted in line with the contract of employment and addressed issues raised by the complainant. It conducted a detailed disciplinary process, which correctly downgraded the level of sanction. It carried out two grievance processes and made several findings in the complainant’s favour. Even if the complainant could establish that there should have been additional findings in his favour, the respondent acted in line with the contract of employment in implementing a grievance process that fairly considered the issues. There is insufficient evidence to show that the contractual term of mutual trust and confidence was repudiated.
In respect of the reasonableness test, I note that the complainant resigned on the 16th January 2019. This was at the time of the appeal of the disciplinary sanction, where he succeeded in reducing this to a Level 1 warning. It was also the time when a new unit manager had started and there were not the same issues as with the previous unit manager. The complainant raised grievances, some of which were upheld. While there were issues with the development chef causing a breach of the allergens policy in late 2018 and January 2019, this was subsequently upheld in the complainant’s favour in the May 2019 outcome letter. It would not be fair to conclude that the complainant had to resign in order for the respondent to act on the January 2019 breach.
Taken together, I find that the complainant has not established that he was justified in resigning because of the unreasonable conduct of the respondent. The unit manager had left the role and later resigned. While there was a disciplinary process, the complainant acknowledged some wrong and succeeded in appealing the sanction applied. I note that there was work-related sick leave in November 2018, but the respondent explicitly asked the complainant to reconsider the resignation in January 2019. Within two days of the letter of resignation, the respondent proposed a new grievance process to address the issues raised by the complainant. Taking account of the input of new unit manager, the reduced sanction, the request for the complainant to reconsider his resignation and the offer of a second grievance process, it was not reasonable for the complainant to resign.
It follows that the complainant was not unfairly dismissed by the respondent and the claim of constructive dismissal does not succeed.
This is a complaint pursuant to the Payment of Wages Act. The complainant seeks the payment of overtime incurred in planning menus and preparing allergen information, for example on a Sunday. The complainant asserts that he is owed unpaid wages in the amount of €10,000. The respondent denies the claim, stating that this overtime was not authorised and in excess of the overtime previously claimed by the complainant.
The overtime clause of the contract of employment provides that overtime will only be paid if authorised in advance by the manager and if the staff member has worked in excess of 40 hours in that week. The overtime rate is time and a half, or double time on a Sunday.
The definition of ‘wages’ in the Payment of Wage Act includes overtime as it is a payment payable under the contract of employment. The Act prohibits any unauthorised deduction of monies ‘properly payable’ to the employee. The question in this case is whether the monies sought by the complainant were ‘properly payable’ to him.
It is clear from the evidence that the role of Head Chef involved preparing a great deal of documentation. This is reflected in the audit outcome as well as the grievance documentation. The complainant stated that he worked additional hours to prepare this documentation, for example on a Sunday. The respondent accepted that reasonable overtime was necessary to maintain its high standards (see the grievance outcome of the 10th May 2019 and the payment of overtime for the first part of the year.)
In a Payment of Wages Act claim, it falls on the employee to show in the first place that wages were properly payable to them and second, that it was unpaid. In this case, this means whether the complainant worked the overtime. The respondent submitted that overtime must be authorised, but it is a feature of this case that the complainant and his immediate line manager (the unit manager) did not have a good relationship. The unit manager resigned in late 2018.
I accept that the complainant raised the issues of his hours in the email of the 30th July 2018. This is referenced in the grievance outcome of the 10th May 2019. It is striking, however, that there is no mention of these additional hours in any of the other documentation. The failed audit of September 2018 raised many issues regarding the operation of the kitchen. They led to investigations pursuant to both the grievance and disciplinary processes. There was a disciplinary appeal, which downgraded the sanction given to the complainant. There were two grievance processes during which the respondent upheld several of the complainant’s grievances. As noted, it is striking that the complainant did not mention the additional hours during any of these meetings.
The complainant has not supplied a schedule for when the additional hours were worked, i.e. dates and number of hours worked. This would be necessary to establish whether overtime pay was properly payable. In accordance with fair procedures, the respondent would then have the opportunity to submit any contradictory evidence.
I accept that the role of Head Chef was challenging. The audit highlighted that the kitchen was tired, and several items of equipment did not work. It cited structural issues in the kitchen. A sous chef was not replaced, and the unit manager was not cooperative. The complainant previously worked overtime and the respondent accepted that there could be ‘reasonable overtime’.
I cannot, however, find that any amount of overtime was properly payable to the complainant in the cognisable period (the six months preceding the claim). I do not have information about when the complainant worked additional hours and this issue was not cited at all in the fall-out from the failed audit. I, therefore, find that the complaint of a contravention of the Payment of Wages Act is not well-founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons set out above, I decide that the complainant was not unfairly dismissed by the respondent.
I decide that the complaint pursuant to the Payment of Wages Act is not well-founded.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act / constructive dismissal
Payment of Wages / overtime / ‘properly payable’