Complainant

Respondent

Parties

Georgi  Georgiev

Ferrycarrig Hotel

Representatives

Self-represented

Loughlin Deegan, solicitor,  Byrne Wallace

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-00062464-001

25/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00062464-002

22/05/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation, cross examination was facilitated.

I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

The complainant submitted that he was left with no choice other than to resign and is accordingly taking a constructive unfair dismissal complaint.  He is also taking a complaint that he was less favourably treated due to having made a Protected Disclosure in accordance with the legislation.

CA-00062464-001 Unfair Dismissal

The complainant submitted that he made a number of disclosures regarding staff members who were not following the appropriate procedures.  As a result of this a number of interpersonal difficulties arose with some of his former colleagues.  This resulted in his demotion, and he could not stay working for the respondent and subsequently resigned from his employment.

In evidence he stated that there were a number of issues he raised such as doors being left open, issues related to food safety, refuse management, staff taking food without express permission, financial irregularities relating to tills at events and issues with street lighting.  Every weekend in September 2023 money was going missing and he was always the person raising concerns. 

He stated that he was informed in November that his job was no longer feasible and that he could return to his previous position as night porter.  When he was told that his position was being discontinued, he felt he could not take the offer of a return to his old position and said he would resign.  He tried to call the General Manager, who he said was not interested in talking at that time.  He confirmed that the GM had recently joined the company in October.

Under cross examination he noted that the Late Duty Manager role was a new one and involved him continuing some Night Porter Duties but taking on additional ones.  This started in July 2023.  It was put to him that there was a trial period and that he was told that “we’ll see how it is working”.  He did not agree that the role was not working out however he confirmed that the Managing Director said that he was not satisfied that there was a need for a late night duty manager.

He confirmed that he did not lodge a complaint with the HR section.

CA-00062464-002 Protected Disclosure

The complainant submitted that he reported a number of issues to Senior Management in his role as a Late Duty Manager.  He submitted that he was treated less favourably by colleagues and management as a result of having made those disclosures.

In evidence he confirmed that the issues he reported were made as a part of his job as a Late Duty Manager.  These related to doors being left open, issues related to food safety, refuse management, staff taking food without express permission, financial irregularities relating to tills at events and issues with street lighting.

CA-00062464-001 Unfair Dismissal

The respondent submitted that the complainant had originally been employed as a Night Porter and had been promoted to the position of Late Duty Manager on a trial basis.  The new Managing Director (MD) met with the complainant to discuss issues raised and reminded to work alongside staff.  Following consideration, the new MD decided to discontinue the role of Late Duty Manager and this was conveyed to the complainant.  He was offered an alternative role, didn’t take it and then resigned.  As such there was no dismissal.  He was also informed that if he took issue with the situation, he could write to the Human Resources section, but didn’t do so.  Accordingly, he did not exhaust all internal dispute mechanisms.

The respondent submitted that in all the circumstances, the complainant’s decision to resign does not amount to an unfair dismissal.

CA-00062464-002 Protected Disclosure

The respondent submitted that it was always the complainant’s job to raise the issues that he raised and accordingly there were no protected disclosures made.

The first witness for the respondent was the HR Manager who recalls the position being a trial basis at the start.  He noted that the complainant had a difficult relationship with one of his colleagues.  However, the witness stated that the management were looking at the continuance of the role rather that at the continued employment of the complainant. 

In early November it was agreed that the role was not working out, but it was agreed to give it a few more weeks and the complainant was given some guidance as to how to deal with his colleagues.  It was agreed to look at whether the benefits of the role would outweigh the working pattern challenges.  At the end of November, the complainant was still frustrated in his role, and it was agreed that the position was not working out.  The complainant was offered the chance to revert to the night porter role but declined it.  He was asked to take time to consider it and revert to HR.  The witness noted that when dealing with grievances or complaints, they usually use a sister property to process these things, to ensure independence.

Under cross examination, the witness confirmed the probationary nature of the position and noted that the previous GM did not think it was appropriate to give the Late Duty Manager more responsibility.  She confirmed that the issue of Night Manager was raised and offered to the complainant but to the best of her recollection, the complainant stated that he did not want to work nights.  She also confirmed that she was aware of him bringing up the issue of staff taking food to the Chef.

The second witness for the respondent was the current General Manager.  He had worked with the respondent previously and he had never seen the feasibility of a late duty manager position – a hybrid of nights and lates.  He stated that when the complainant resigned, he was offered the night manager role but turned it down.

Under cross examination he was asked whether he was aware of the problems with night porters and he noted that he was, and that there always problems with the night porters.  However, he also noted that although the complainant made allegations, the night porter had made counter allegations.  These were in the process of being investigation by the Assistance General Manager when the complainant resigned.

CA-00062464-001 Unfair Dismissal

The complainant quit his employment after having been told that the position he occupied, that of Late duty Manager, was being done away with.  An employer is entitled to restructure its operations to improve efficiency, to undertake its work in a different fashion, or even to continue to provide a service with fewer employees.  This is provided for in the Redundancy Payments Act.  In this case the employer concluded that a role was no longer feasible.  The person in the role, the complainant was informed of the decision and was offered two other positions.  He was also invited to contact HR in writing to pursue a complaint or grievance.  He did not accept either of the positions offered to him, nor did he write to the HR section to pursue matters.

Dismissal is defined in the Act as follows:

“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;

The respondent submitted that it is incumbent upon person to exhaust or at the very least substantially utilise a grievance procedure where one exists, before that person can rely on constructive unfair dismissal. In that regard it referred, in general terms, to the precedent cases in the Courts.  Amongst the cases that have considered the issue of exhausting internal procedures are the following cases:

Conway v Ulster Bank, UD474/1981

“substantially utilised the grievance procedure to attempt to remedy her complaints”

McCormack v Dunnes Stores, UD 1421/2008

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

Travers v MBNA Ireland Limited, UD720/2006

“the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

“in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In his evidence the complainant confirmed that he did not make a complaint nor seek to lodge a grievance before resigning and he did not do so when the respondent HR Manager encouraged him to consider his position.  He resigned without doing so.  Accordingly, I find that he had another option open to him, an alternative to resignation.  Therefore, I find that he was not unfairly dismissed.

CA-00062464-002 Protected Disclosure

Section 5(5) of the Act states as follows:

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

Both the complainant and the respondent refer to the disclosures made by the complainant as concerning information acquired and reported in a ‘work-related context’.  The respondent indicated that the matters reported by the complainant were part of his duties.  The complainant confirmed in his written submissions and oral evidence that it was part of his job to raise the concerns that he raised.

Having regard to Section 5(5) of the Act, I am satisfied that any reporting of incidents or facts made by the complainant falls within the function of his job.  Accordingly, I find that there were no relevant wrongdoings reported and that no protected disclosure was made.

CA-00062464-001 Unfair Dismissal

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not dismissed, unfairly or otherwise.

CA-00062464-002 Protected Disclosure

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that there were no relevant wrongdoings reported and that no protected disclosure was made.

Unfair dismissal – constructive dismissal – all avenues of redress not exhausted – Protected disclosures – concerns fall within role function – no relevant wrongdoings.