Complainant

Respondent

Parties

Fabio Dantas

Heat Restaurant Limited

Representatives

Represented himself 

Rutledge Doyle & Qian LLP

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-00068583-004

13/01/2025

The complainant is a Brazilian national and he worked in the respondent’s restaurant as a kitchen porter.  He started in his job on June 9th 2023.  He said that he generally worked for between 30 and 40 hours per week.  He was paid an hourly rate of €12.75.

On January 10th 2025, the complainant resigned from job.  In his letter of resignation, he said that circumstances had made it unsustainable for him to continue working in the company.  He said that, although he signed a contract on two occasions, despite repeated requests, he didn’t get a copy of the contracts.  He said that there were discrepancies between the hours worked and the hours stated on his payslips.  He was excluded from the staff “kris kindle” gifts.  He said that he was intimidated by his supervisor, and that this made his work environment unbearable.  When he raised his concerns, he said that he was issued with a disciplinary letter with allegations that he had been bullying and intimidating others.  He submitted this complaint to the WRC on January 13th. 

Evidence of the Complainant

The complainant was not represented and his evidence was in the form of an oral submission in response to me, the adjudicator, asking him to set out the background to his decision to resign from his job.

He said that a manager didn’t like him.  In his first month in the job, he asked if he could work the early shift one Saturday, because he wanted to go to a birthday party.  He said that the manager didn’t reply to his request and that, from then on, he treated him differently.  He said, “he spoke to others, but not to me.”

In December 2023, the complainant said that he was on holidays from his school where he is studying English and he went to Portugal.  He said that he didn’t get any holiday pay.  He started a job in a clothing shop and he said that the manager of the restaurant told him that if he couldn’t work the shifts that he was scheduled to work, he could leave.  He said that he was told that he would be “fired” if he didn’t work the schedule.

In September 2024, the complainant said that a new chef started in the restaurant and that the atmosphere wasn’t good.  He said that he and other kitchen porters had to be organised to clean the kitchen and that they got no help.  When he spoke to one of the managers, Mr Yai Shao, who consulted with another manager, his hours were cut.  He said that the manager spoke to everyone, but that he ignored him.

The complainant said that he explained to the manager that the kitchen was left dirty when he was off and he had to clean it when he came back.  He said that the manager told him to speak to the chef, if he felt that the kitchen porters weren’t doing their jobs properly.  The complainant felt that it wasn’t his job to speak to the chef.

The complainant said that his hours cut to eight hours per week.  When he asked for a copy of his contract, he said that there was a threatening tone at the meeting.  He said that the manager knew about his other jobs and that he couldn’t have a copy of his contract because he had a second job.  The manager accused him of bullying a kitchen porter, who is now working as a chef.

The complainant said that he told the manager that he wanted to work for 16 hours each week and that he would work for another restaurant, Elephant and Castle, for four hours.  He said that, after the meeting, he got a letter in which he was accused of bullying.

Cross-examining of the Complainant

Opening his cross-examining, Mr O’Hanrahan referred to the complainant’s letter of resignation in which he said, “I believe that, given the circumstances, this is the best decision for my mental health and personal growth.”  The complainant told Mr O’Hanrahan that he has a qualification in information technology and that he worked in IT for three years in Brazil.

Mr O’Hanrahan referred to the complainant’s contract of employment, which was submitted in the respondent’s book of papers for the hearing.  The complainant agreed that his signature is on the contract.  He said that he signed a contract when he started in June 2023 and he signed a second contract in September 2024.   Under the heading, “Hours of Work,” the contract states,

“Your exact hours of work and breaks will be dependent on the needs of the business and will be advised to you weekly by your manager.”  Mr O’Hanrahan said that there is no reference in the contract to 16 hours.  The complainant said that in September 2024, “we met the accountant and he said that hours would continue.”  He said that he got a new contract of employment and he signed it without reading it.  He didn’t get a copy to take away.

The complainant agreed with Mr O’Hanrahan that his English is reasonably good.  While he made a complaint about bullying, Mr O’Hanrahan put it to the complainant that he was hostile towards another kitchen porter from Brazil.

Mr O’Hanrahan referred to a message the complainant posted to the group WhatsApp for the staff of the restaurant in which he accused his colleagues of “browsing their phones and saying they are not cleaners.”  He said that this comment referred to all the kitchen porters, and not just a specific porter.  He said that he “wasn’t pointing at anyone.”  He said that the manager told him that if anything was wrong, he was to post it in the group chat.  He wanted to understand what the issues were.

Mr O’Hanrahan referred to the manager’s response to the complainant’s WhatsApp message in which he said, “This is your personal opinion.”  He advised him not to pay too much attention to other people’s work and not to comment about it.  The manager said that the work of all the kitchen porters meets his requirements and “they are all good.”

The complainant referred to the advice from the manager that he could leave if felt that the work was “too tiring, too busy or too unhappy for you personally.”  He described this as a threat and he said that he felt intimidated.

The complainant agreed with Mr O’Hanrahan that the management in the restaurant had no problem with the kitchen porters. 

Mr O’Hanrahan said that January was slow in the restaurant and that this is why the complainant’s hours were reduced.  The complainant replied that he didn’t know why he was rostered for just eight hours.

Mr O’Hanrahan referred to the complainant’s request for time off in the busy period before Christmas and he said that the manager did everything possible to facilitate this.  The complainant said that he asked to be rostered off in the evening.

Mr O’Hanrahan referred to a document included in the respondent’s booklet that shows that the complainant was paid for holidays not taken in his payslip on January 7th 2025.  A copy of the payslip was also included in the booklet.  The final payslip dated January 21st 2025 shows that the complainant was paid €90.80 for a “back week” of eight hours at €11.35 per hour.

The complainant didn’t agree with Mr O’Hanrahan suggestion that his employer was “always kind to him,” recognised that he was working elsewhere and gave him time off when he needed it.  He said that the managers “treated me as if I was causing the problems.”

Legal Submission

On behalf of the respondent, Mr O’Hanrahan provided a written submission in advance of the hearing in which he addressed the allegations made by the complainant concerning his employment with the respondent.

Regarding the kris kindle issue, Mr O’Hanrahan said that the giving of gifts is not an issue under the control of the respondent and is a matter for the employees.

Mr O’Hanrahan said that the reduction in the complainant’s hours in January reflected the seasonal downturn in the restaurant business.  The complainant had two other jobs and the respondent had to be mindful of the limit of 20 hours required by his visa.

Mr O’Hanrahan conceded that the complainant was not issued with a copy of the contracts that he signed.  He said that the complainant was informed that he would be issued with a contract as soon as he confirmed the number of hours he was working elsewhere.  He never provided this information.

Mr O’Hanrahan said that the complainant received his holiday entitlements up to the date of the termination of his termination on January 10th 2025.

Following a meeting with the complainant on December 17th 2024, an investigation was conducted and staff were interviewed.  From the discussions, Mr O’Hanrahan said that it became apparent that the complainant had behaved in an aggressive manner towards other employees.  He had made false claims on WhatsApp with the objective of discrediting other staff.  He suggested that others were not doing their jobs properly.  On December 19th, Mr McMahon wrote to the complainant and told him that a disciplinary investigation would be carried out in the new year to address the allegation of his unacceptable conduct towards his colleagues.  On January 10th, the complainant resigned.   

Response of the Director, Mr Niall McMahon

Following the referral of this complaint, and, in response to the complainant’s allegations, a director of the respondent’s company, Mr Niall McMahon, who attended the hearing on July 25th 2025, wrote to the WRC.  Mr McMahon said that the complainant was a diligent and hard-working member of the kitchen staff but that, over the last 12 weeks of his employment he made his position at work untenable due to his constant harassment and bullying of his colleagues, the other three kitchen porters.  Mr McMahon said that the complainant’s negative and condescending attitude towards his fellow kitchen workers and senior management came as a shock considering his excellent attitude and etiquette until then.

In response to the complainant’s allegation that he wasn’t given a “kris kindle” gift at Christmas, Mr McMahon said that the company has never and will never be involved in kris kindle.  He said that this is an agreement based on the good will of staff and it is not a condition of working with the company.  He said that a gift between individuals is a personal matter and in no way a reflection of the company’s professional practice.

ln response the reduction of hours complaint, Mr McMahon said that the complainant asked for time off in the busy month of December to finish a college project.  Despite the kitchen being overwhelmed and understaffed at this extremely busy time of the year, the application for time off was granted.  Up until that point the complainant’s hours did not change.  The reduction in hours after the busy December period was across the board.  As the restaurant exits a busy period, hours would generally be cut in all departments due to a severe drop of in business.  In the complainant’s case, he worked in another restaurant, Elephant and Castle, and he informed the restaurant manager that he wouldn’t be able to work in the respondent’s restaurant on certain days as he was working in Elephant and Castle.  Following further investigation, Mr McMahon said that it came to his attention that the complainant was also working in a retail clothing warehouse.

Mr McMahon said that he met the complainant with the manger, Mr Yai Shao they asked him to confirm that he was only working with his restaurant and not exceeding the 20 hours of the student visa limit.  He said that the complainant didn’t provide this information and Mr McMahon said that he was advised by his solicitor not to issue the complainant with a written contract until confirmation was received.

With regard to wages, Mr McMahon said that all payments were made in full in 2024.

Mr McMahon said that, despite a paralyzing spinal injury that has left him unable to walk or attend work for the past fourteen months, the complainant requested a meeting with him. He went to the meeting on December 17th 2024 because he was informed that it was urgent.  At the meeting, the complainant told Mr McMahon and Yai Shao that a kitchen porter had not cleaned the grease trap on two occasions in the previous two months. 

The complainant asked for a copy of his contract which, Mr McMahon said would be provided after Christmas because the office staff were not available until the New year.  Following an investigation, it transpired that the complainant had two other jobs and that he had been working at these jobs while he was working for the respondent. 

Mr McMahon said that the complainant worked an average of 23.90 hours per week in his restaurant in 2024, excluding his annual leave and public holidays.  Mr McMahon said that pay for annual leave, public holidays and his back week have all been paid.

In conclusion, Mr McMahon said that he “found the entire situation to be a sad end” to the employment of the complainant.  Following several meetings to try to resolve the situation he said that he was disappointed to read his version of events.  Apart from his last twelve weeks with the company, Mr McMahon said that the complainant had been a hard-working, diligent and friendly member of staff.  However, after he sent messages to his colleagues, he created a toxic environment and “left himself with nowhere to go” despite the attempt of the managers to resolve the situation.

Mr McMahon said that the complainant failed to turn up for his last three shifts and didn’t provide any medical certs to indicate that he was ill.  He resigned in a letter dated January 10th.  By January 23rd, he had been paid the wages he was due.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

As a complaint of constructive dismissal, the burden of proof rests with the complainant to show that his decision to leave his job was reasonable in the circumstances that prevailed at the time.  The issue I must decide is, taking into consideration the conduct of the respondent in relation to this former employee, and considering that, his grievances were addressed at a meeting with a company director and a manager on December 17th 2024, was it reasonable for him, or was he entitled to terminate his employment?

The Reasonableness of the Employee’s Decision to Resign

It is well established that the burden of proof required in cases of constructive dismissal is a high bar for a complainant.  In this regard, I refer to the determination of the former Employment Appeals Tribunal in Debbie Kearns v Silverfern Properties Limited, [2013] 2 JIEC 0701.  Here, the Tribunal stated,

“In order to succeed in a claim of constructive dismissal, a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as the justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

It’s clear from his evidence that the complainant was unhappy with the relationships in the restaurant where he worked.  It seems to me that he placed himself under significant pressure, as he was a student with three part-time jobs.  He was perfectly entitled to resign if he wanted to remove himself from what he considered to be a difficult situation.  To succeed in a complaint of unfair dismissal however, a complainant must demonstrate that his employer has inflicted a fundamental breach on his contract of employment or, has acted so unreasonably, that he had no alternative but to resign.  This complainant has not shown that his employer was in breach of his contract, or, that they acted unreasonably.  Considering his circumstances, the respondent’s managers were well disposed towards him and it is my view that the issues he complained about were all capable of resolution.  Having listened to his evidence, it seems to me that he behaved as if the rules applied to others but not to him.

Reasonableness is required from both parties, and it is my view that the complainant did not act reasonably by resigning before giving his employer a chance to deal with any remaining grievances that had not been addressed at the meeting on December 17th.  I believe that his decision to resign was peremptory and that his objective was to avoid the investigation into his own conduct which was to happen in early January. 

I find that the complainant has not made out the standard of the burden of proof required that demonstrates that the conduct of his employer was such that he had no alternative, but to leave his job.

I find that the complainant has not demonstrated that his employer behaved so unreasonably that he had to resign from his job.  Having reached this conclusion, I decide that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal