ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029071
Parties:
| Complainant | Respondent |
Parties | Auke Schots | Sneem House Hotel Ltd Sneem Hotel |
Representatives | Niall Kerry | Adrian Hegarty Malone Hegarty Solicitors & Ms Clodagh Brick BL |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038763-001 | 16/07/2020 |
Date of Adjudication Hearing: 29/11/2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant joined the hotel in 2009 as commis chef, was promoted to sous chef in 2014 and was promoted again to head chef in 2017. The relationship between him and the owner and the general manager of the hotel was excellent. He was rated excellent over a number of years. However, in 2019 a number of challenges emerged for the Hotel and for the complainant. Staff turnover increased dramatically. At a meeting between him, the owner and the general manager a number of matters were discussed, from ordering to staff retention. Arising from staff turnover, short term agency backfilling costs had increased substantially. There was also a discussion about the menu and a need to refresh it. Allowing for the fact that a kitchen can be pressurised, the manager requested that the complainant refrain from cursing and also, she noticed that at times he was spending a lot of time on his mobile phone. All this feedback was taken on board and the complainant states he committed to work on what he could control. However, staff turnover was not something that he could readily fix based on the competition for staff and higher rates of pay on offer. There was a follow up email from the manager, which according to the complainant was surprising; as it raised a matter of concern regarding his commitment , which had never been discussed with him previously. A family bereavement took place in October 2019 and there was pressure placed on the complainant to limit his absence if possible due to staff shortages. In January 2020 there was another meeting, where the complainant alleges he was asked to step down as Head Chef, which came as a total surprise. At this meeting the manager said she had lost confidence in him to lead the team and that there had been no improvement since the last meeting. The complainant then learnt that his job has been advertised through a recruitment agency. The complainant appealed the decision to remove him as Head Chef and initiated a grievance concerning what he saw as unfounded allegations concerning his management of staff and commitment. On the 5th February 2020, management emailed the complainant concerning a detailed role responsibility for Head Chef that he had been given at the meeting held on the 31st of January 2020 and requesting that he commit to achieving what was set out in the document. The new job description significantly changed the duties that he had previously fulfilled as head chef and was more comparable to an executive chef role. One of the requirements in the new job description was that he would be available 24 hours. At this point there was an exchange of emails between the complainant and the manager, where the employee sought that his grievance be heard and the manager sought assurances from the complainant that he would commit to the new job responsibilities. The employee believes that he was being stonewalled, and despite several requests by email on the 27th of January 3rd February and the 6th February 2020, management failed to address his grievance or to arrange a meeting to hear his grievance. His grievance related to being scapegoated in connection with problems that arose from high turnover and had nothing to do with his performance as Head Chef. The employee states that his role was placed with an external employment agency and advertised on the 23rd of January 2020. The employee states that combined these series of actions amounted to him being dismissed from his role as Head Chef and it was also suggested that he could have the position of sous chef. On the 13th of February 2020 the employee left his job believing that he had no other alternative. The Hotel refute that the complainant was constructively dismissed and deny that his role was advertised externally. What in fact occurred was a genuine and legitimate performance review process concerning areas of concern regarding the need for improvement when communicating and training kitchen staff , administration issues, the requirement to initiate menu change and the need to lead by example and refrain from using bad language in the kitchen and to reduce the amount of time spent on the mobile phone during work. The language used to describe both staff and customers was extreme and very abusive and despite having been raised was not addressed by the employee, creating a hostile working environment. The employee, as a leader of the kitchen, had failed to train staff adequately or at all and again this matter had been raised with the employee. Changing menus frequently was a core responsibility of the Head Chef and this became an area of focus for management as it wasn’t changed frequently enough. 3 of the chefs which the complainant hired had left the Hotel after a very short period. Management believed that the complainant was not leading the kitchen staff and instead the environment had become hostile, lacking structure, good communication and standards of training and follow up were lacking. At the meetings held with the employee he had discussed how he found the role stressful and based on this fact, management suggested that another role with less responsibilities might be explored as an option. The employer states that the first meeting held on the 16th of October 2019 was a standard management meeting and management laid out clearly what should improve. However, when no improvement took place, another more formal meeting took place in January 2020, to address these shortcomings. No decision had been made to remove the employee from the position of Head Chef, in fact the request to discuss the responsibilities of Head Chef in January 2020, is proof that this was the factual situation that existed. Management was surprised that the employee resigned with immediate effect in breach of his contractual obligations. The position of the employee that he was being removed and that he was processing a grievance about his removal while also attending meetings to discuss the role of Head Chef are contradictory. |
Summary of Complainant’s Case:
The employee maintains that a fundamental breach of his contract occurred and that in reality the decision to remove him from his position as head chef had been made. The performance review meetings and detailing a new job description where simply a cloak to conceal that he was being removed from his position. The behaviour of the respondent Hotel was totally unreasonable, failing to address staff shortages and scapegoating the employee by laying blame on his shoulders when in fact management had created the problem and had failed to respond appropriately. The Hotel stonewalled the employee and would not meet him to address his grievance. In effect he had been removed from his role and the process initiated was designed to force him to resign. |
Summary of Respondent’s Case:
A high bar of proof rests with the employee to show that he was in fact constructively dismissed. The employee has failed to discharge the burden of proof that he was dismissed. There were shortcomings requiring attention so that the business could operate efficiently and effectively. There was no witch hunt. The matters raised were serious relating to staff development and leadership. There was no decision made to remove the employee from his role; however, there were shortcomings that were required to be addressed and these were significant. That does not amount to dismissal. Management was meeting the employee to discuss their expectations and what the job demanded, there was no stone walling. |
Findings and Conclusions:
Murdoch and Hunt’s Encyclopaedia of Irish Law ( 2016 edition) defines Constructive Dismissal as follows: A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227. The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328. The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293. The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as: ( 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 This statutory definition in turn has been elaborated upon to include two tests: Redmond on Dismissal Law ( Bloomsbury Professional 3rd Ed. 19.04): There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment but its conduct may be nonetheless unreasonable. In law there is a contract test and a reasonableness test. The employee argues that his job had in fact been externally advertised and that is a fundamental breach of his contract. The employer denies that is so and no evidence has been provided at the hearing to corroborate that assertion. The Hotel also asked him to consider moving to a lower position and the employee contends this does corroborate his version of events that he was in fact being removed from his role. The employer states the option to look at a different role arose in the context of the employee stating that he was finding the responsibilities of head chef stressful. In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was: 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. Has a fundamental breach of the contract occurred in this case? There is no evidence that is so, as no corroboration has been provided to support the employee’s assertion that his job had been covertly advertised. It is highly likely if that was so, it could amount to a fundamental breach of the contract that could justify the employee terminating his contract. Does the fact that the employee was asked to consider stepping down to a lower grade amount to a fundamental breach of the contract? The perception of the two parties concerning the context of this discussion is very different, the employee saying that he was in effect being pushed out of his job and told to take a lower position. The employer maintains that he was not being pushed out, rather the option was discussed when the employee stated that he found the position of head chef stressful. On balance, no fundamental breach of the contract occurred based on a discussion to consider a lower grade position. In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case: 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. The management of the Hotel, state that they had reasonable cause to discuss how the employee was carrying out his head chef role, having regard to staff turnover, bad language, lack of focus and inadequate training of staff. The complainant accepts that some of these observations were valid; however, rejects any responsibility for the level of staff turnover, which solely related to staff being poached and the Hotel not paying market rates. The test to be applied is an objective one. I must consider the behaviour of both the employee and the employer. On the facts the employee’s own conduct as head chef required some improvement concerning his use of abusive language and time spent on his mobile phone. The employer, on the facts had moved to a place where they had concerns about the employee’s performance as head chef and wished to formalise role responsibilities and duties so that his performance could be carefully reviewed and monitored. Is that behaviour oppressive so that it amounts to a serious damage in the employment relationship without reasonable cause? On the facts this conduct would not meet that threshold of unreasonableness. Looking at the cumulative interactions between the employee and what the employee views as stonewalling and a failure to hear his grievances does that meet the threshold of unreasonableness? The employee relies on 3 emails concerning his allegation of stonewalling and that his grievance is not being heard: I requested such meeting by e-mail on three occassions-26th January 2020, 3rd February 2020 and 6th February 2020 The employee leaves his employment on the 13th of February 2020. The 3 emails are sent within a short timeframe, a failure to respond within such a timeframe and the date of leaving, does not meet the threshold of unreasonable behaviour that seriously damages the relationship without reasonable cause. Can the cumulative effect of all interactions, concerning the conduct of both the employee and employer, have crossed the threshold having regard to the effects of that behaviour on the employee; where the cumulative effect of that behaviour could be deemed to have been improper and seriously damaged the relationship of trust and confidence? It is very clear that the interactions between the employee and management unsettled him, and caused stress. However, the interactions while difficult, looked at in the round and cumulatively do not amount to unreasonable behaviour as there was reasonable cause to commence those discussions. There may have been better ways to manage those conversations. However, there was no improper behaviour that cumulatively and seriously damaged the relationship as the conversations occurred within the context of a very genuine management concern about behaviours potentially impacting on staff retention. These conversations may have damaged the relationship and may have caused stress; however, they occurred based on the employee’s manager having concerns about his behaviour and how that was impacting on staff retention. That amounts to a reasonable cause, to have those conversations. The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed , 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. Therefore I find that the employee was not unfairly dismissed and dismiss the claim. |
Decision:
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.
The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed , 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. Therefore I find that the employee was not unfairly dismissed and dismiss the claim. |
Dated: 10-01-22
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Constructive Dismissal- |