Complainant

Respondent

Parties

Delour  Hussain

Chilli Lounge Ltd

Representatives

  In person

Morgan McManus Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058508-001

25/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058508-002

25/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058508-003

25/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058508-004

25/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058508-005

25/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00058508-006

25/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00058508-007

25/08/2023

The complainant commenced working with the respondent on 30th December 2017 and remained in employment until 26th February 2023. The complainant was initially employed as a Tandoori Chef and after a short period he was placed in the position of assistant chef.

This complaint was received by the Workplace Relations Commission on 25th August 2023.

The Complainant made the following complaints to the Workplace Relations Commission:

CA – 00058508 – 001. Submitted under section 7 of the Terms of Employment (Information) Act 1994.

The Complainant contends that he was never issued with a statement of the particulars of his employment as prescribed in the Terms of Employment (Information) Act, 1994.

CA – 00058508 – 002. Submitted under the Organisation of Working Time Act 1997.

The Complainant contends that he did not receive breaks when at work. He had to work between 7.5 and 8 hours without a break.

CA – 00058508 – 003. Submitted under the Organisation of Working Time Act 1997

The complainant contends that he did not receive his paid holiday / annual leave entitlement. The Complainant took holidays in 2020 and 2022 and states he was not paid for these holidays.

CA – 00058508 – 004. Submitted under the Organisation of Working Time Act 1997

The Complainant contends that he did not receive his public holiday entitlement.

CA – 00058508 – 005. Submitted under the Organisation of Working Time Act 1997.

The complainant contends that he was not paid compensation for working on a Sunday.

CA – 00058508 – 006. Submitted under the Payment of Wages Act, 1991.

The complainant contends that the respondent did not pay him the proper amount of wages or less than the amount due to him.

CA – 00058508 – 007. Submitted under the Unfair Dismissal Act 1977.

The complainant states that he had to leave his job due to the conduct of his employer or others at work (Constructive Dismissal), he had at least 12 months service.

The complainant did not present a written submission at the hearing but stated the following on his complaint form:

I worked 7:30 minutes to 8 hours without break. I was also not paid my annual leave, my public holidays and my Sunday compensation. In addition, I was not given a contract of employment, hence I was not sure under which terms I was working. I always asked the employer to solve those issues but they ignored me. Furthermore, I was given a diminishing role and maintained to that role since I started working for the same employer in December 2017 until I left. I came in the country in 2005 as a tandoori chef. I worked as a chef since then. Chili Lounge LTD employed me and paid me as an assistant chef. However, the duties assigned to me were the duties of the main chef. I performed well the duties which were given to me. I was expecting that my position will once be raised to chef; I asked many times to be recognized as a chef, but they ignored me.

Because I needed money, I had no choice but to accept that degrading working situation. But as time kept going on, being ignored and bullied by the boss and his sons who have less experience, knowledge than I have, and who were doing less job than I did, it became too much; I was no longer able to bear it. There was no chance for the situation changing, I was exploited for more than 5 years. I had stress and I was feeling very bad in myself.

My health was getting damaged. Then, because of the employer's conduct which they did not want to change, I had no other choice but to leave the job.

INTRODUCTION

The Complainant began working for the Respondent on the 30th December 2017. The Respondent had only opened an Indian Restaurant in Cavan Town, in early December 2017, called “Chilli Lounge”. At the time of opening, they were actively looking for employees to work in their restaurant. At that time, the Complainant had been working in KFC in Monaghan. While, in retrospect, he had very little restaurant experience, he had informed the Respondent’s Manager Raju Hassan that he had worked previously in the role of a Tandoori Chef before he had come to live in Ireland. He applied for that role and was given that role on that basis.

THE COMPLAINANT’S CASE

The Complainant asserts that:

(1) That he was not given Terms & Conditions of Employment.

(2) That he did not get work breaks

(3) That he did not get paid holiday/annual leave entitlement

(4) That he did not receive public holiday entitlements

(5) That he was not given compensation for working on a Sunday

(6) That he was not paid or that his employer paid him less than he was entitled to

The Complainant also claims Constructive Dismissal, alleging that he had to leave his job due to the conduct of his employer or others at work.

More specifically, the Complainant alleges that he was not given a Contract of Employment and hence he was not sure of the terms under which he was working; that he worked 7 ½ to 8 hours per day without a break. He alleges that he requested the Respondent to solve these issues but that he was ignored. He claims that he was given a diminishing role and restricted to that role since he started working for the employer until he left. He claims that he came to Ireland in 2005 as a Tandoori Chef and that he had worked as a Chef since then; but that the Respondent employed him and paid him as an Assistant Chef. He claims however that the duties assigned to him were the duties of the Head Chef; that he expected to be promoted to Head Chef and asked many times to be recognised as such a Chef but was ignored.

The Complainant alleges that, because he needed money, he had no choice but to accept the degrading working situation but that, as time kept going on, being ignored and allegedly bullied “by the boss and his sons who have less experience, knowledge” than he had and were doing less work than him, it became too much. He claims that he was no longer able to bear it and that there was no chance of the situation changing. He alleges that he was exploited for more than 5 years. He claims that he suffered from stress and that his health was being damaged and consequently that he had no choice but to leave his employment.

THE REPSONDENT’S CASE

The Respondent will state that all the allegations made by the Complainant are false and are made in an attempt to defame the Respondent’s restaurant and ruin the reputation which the Respondents have spent years building here in Cavan town.

Shayak Ali, father of Raju Hassan, has been an Irish Citizen and residing in Ireland for roughly 22 years. At the beginning of his coming to Ireland, he was working as a Head Chef in a restaurant in Monaghan called Eastern Balti House. He worked in this role for about 12/13 years. It was always a wish of Shayak Ali to one day run his own restaurant. While residing in Monaghan the family identified a scope in the market for a good Indian restaurant in Cavan Town. Back then Raju Hasan also was working in Eastern Balti House. They opened their restaurant in Cavan town in early December 2017. Following this, Raju Hassan, his father, and his brother Mahbub Hasan Muhon and their family opened their restaurant which is presently called Chilli Lounge.

At the time of the opening, they were actively looking for employees to work in their restaurant. The Complainant heard about the Respondent’s recruitment campaign and approached the family asking for a job. He was at that time working in KFC in Monaghan. He requested them to give him a Tandoori Chef role in their restaurant. He informed them that he was very well experienced in that role and would do exceedingly well at it. The family accepted the Complainant’s assurance of his experience in good faith. Because however the Restaurant was only opening they would not have been in a position to give him a full time Tandoori Chef role.

The Respondent decided to hire the Complainant as a part-time worker for the role of a Tandoori Chef; however very quickly they realised that he did not possess the skillset, competence, knowledge, or efficiency for this role. They hired another employee for the role of the Tandoori Chef; having informed the Complainant in the circumstances that they would be obliged to give him the role of Assistant Chef to help with food preparation. The Respondent had no alternative but to take this action. The Respondent was only commencing in business in Cavan town and it was important that the business got off to a very good start. It was clear to all, including the Complainant, that he did not have the necessary experience of a Tandoori Chef.

Insofar as the Complainant purports to make Complaints under the Organisation of Working Time Act 1997 with regard to his hours of work, compensation for Sunday working and alleged failure by the employer to furnish payslips, where the Respondent replies below to these Complaints, they do so with reference to Section 27 (4) of the Organisation of Working Time Act 1997, which records that an Adjudication Officer shall not entertain a complaint under this section if it is presented to the WRC after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Where the Complainant notes on his Complaint Form that his employment ended on the 26th February 2023 and it is noted that his Complaint was only received by the Workplace Relations Commission on the 25th August 2023, some 6 days less than 6 months from date of termination of his employment it is respectfully submitted that the Respondent is obliged only to reply in response to those specific Complaints to the period relating to the last week of the Complainant’s employment.

PAYSLIPS AND TIME WORKED

After the opening of the restaurant Shayak Ali, father of the Manager Raju Hassan, continued to work as the Head Chef in Chilli Lounge. Shayak Ali brought with him the recipes which he had created and perfected in Eastern Balti House, where he had worked as Head Chef for the previous 12/13 years and catered them perfectly to suit the customer base. The Complainant continued thereafter to work with both the Head Chef and the Tandoori Chef without complaint.

The Complainant worked 25 hours per week. The Respondent has attached payslips for the months of January and February 2023 (the last 2 months of the Complainant`s employment) to support the hours that the Complainant worked and the fact that he was given payslips.

The Respondent ensured that the Complainant received his payslips on a monthly basis, which were sometimes sent to him through WhatsApp or handed to him face to face.

The Respondent states that it is important to emphasise that, as a family, they have always treated their employees as family. This is in their ethos, where they would ensure also that their employees’ families also feel part of the Respondent`s family and where they are invited on many occasions to family celebration events.

It is also important to emphasise, where the various allegations are made by the Complainant against the Respondent claiming that he “needed money. I had no choice but to accept that degrading working environment”, that the Complainant at the time of his employment was an Irish Citizen. He did not come to work for the Respondent under the Foreign Permit system and, at any time, he was free to negotiate the Terms and Conditions of his employment and to leave his employment if he was not happy with those Terms and Conditions.

Terms and Conditions.

The Complainant alleges in his Submission that he never received his Contract of Employment and was unsure of the work conditions he was working under. It is accepted that when he was originally employed, the Complainant was not given a written Contract of Employment. Nor were any of the Respondent`s employees given written Contracts of Employment at that time. Subsequent however to a WRC Inspection of the Respondent`s premises on the 13th March 2022 and in anticipation of that inspection, the Respondent worked with their Accountants Kelly Rahill & Co with a view to bringing all of their regulatory obligations up to date and Contracts of Employment were prepared and delivered/handed to all employees for signature in duplicate, where the employee would retain one copy and the employer would retain the other copy.

At that time the Complainant had returned home for holidays. Raju Hassan sent the Complainant a copy of his Contract of Employment by WhatsApp on the 13th March 2022, which he signed on his return to Ireland. He was given a copy of this, and the Respondent retained a copy. Regrettably, the Respondent has not been able to locate their copy but relies on a copy of the Contract delivered by the Respondent to the Complainant at that time with the WhatsApp messages exchanged.

Very importantly, it will be noted that this Contract of Employment comprised a Grievance Procedure which recorded: “The Company is most anxious that legitimate grievances raised by an Employee are expeditiously and fairly resolved. If the employee has a grievance relating to his employment should discuss it with the Company”.

The fact that the Respondent cannot at this time locate a copy of the signed Contract of Employment is irrelevant as the Respondent is only obliged to prove that they furnished Terms and Conditions of Employment to the Complainant. The Respondent did so.

BREAKS

The Complainant alleges that he did not receive any breaks after working 7 and half hours to 8 hours a day. The Respondent denies this allegation. The Complainant is a Muslim, which means he would need to pray his five obligatory prayers. Out of five he prays, two of them are prayed while he is at work. The Respondent always made sure that the Complainant received this break from work to complete his prayers. Raju Hassan can verify that each prayer takes approximately 10 minutes to complete. Furthermore, the Complainant is a smoker, which meant he regularly needed smoke breaks, which the Respondent always accommodated. The Complainant always received a dinner break, for which he would always cook whatever he wanted from the ingredients used in the Respondent’s restaurant, and the Respondents and their employees would all dine together. In Chilli Lounge the Respondent always provide the facilities for staff to have free unlimited food and drink from the restaurant. Their other staff can vouch for this.

The Respondent has furnished the Work Rosters for the Complainant for the weeks ending 30/01/2023 and 27/02/2023 (being the last 2 weeks of the Complainant’s employment) In the normal course, all of these records were delivered by the Respondent to their Accountants Kelly Rahill & Co, Cavan.

PAID HOLIDAY / ANNUAL LEAVE

The Complainant alleges that he did not receive his paid holiday/annual leave entitlement. The Respondent can confirm that the Complainant was paid all his annual leave. In any case, where the Complainant’s Claim was submitted just 5 days short of the 6-month period from the date of the termination of his employment and the Complainant did not have any Holiday/Annual Leave entitlement during the 6-month period prior to the receipt by the WRC of the Complaint, it is respectfully submitted that any such Claim is statute-barred.

PUBLIC HOLIDAY ENTITLEMENTS

No Public Holidays arose in the 6th month period ending on the 25th August 2023 being the date of receipt by the WRC of the Complainant’s Complaint; the last Public Holiday having been the first Monday in February 2023.

SUNDAY WORKING COMPENSATION

The Complainant alleges that he did not receive his Sunday compensation. Raju Hassan can also verify that he was paid his Sunday compensation any time he worked on Sundays; but generally he was not asked to work on Sundays. The Payslip dated 27/02/2023 shown at Exhibit 1 demonstrates the Complainant being paid his Sunday Compensation.

ALLEGATION THAT HE WAS PAID LESS THAN HIS ENTITLEMENT

The Complainant alleges that he was paid less than his entitlement. This is denied as recorded in the Complainant’s Contract of Employment, he worked 25 hours per week and was paid €10.50 per hour, which rate had been increased to €11.30 per hour from January 2023.

ALLEGED DIMINISHING ROLE

 In his Submission, the Complainant states that he was given a diminishing role and that, while hired as an Assistant Chef, the duties assigned to him were that of a Head Chef. He states that he performed well in his duties and wanted to be promoted to Head Chef with an increase in his wages, but that his requests were ignored. This is denied by the Respondent. The Respondent already had a Head Chef, which meant that the Complainant was never required to take on the duties of the Head Chef. He states that he did exceedingly well in his duties, but Raju Hassan can confirm that the Complainant never showcased his expertise in the role of even an Assistant Chef and he lacked the knowledge and expertise required in food service.

HOW THE COMPLAINANT WAS ACCOMODATED BY THE RESPONDENT

On many occasions the Complainant came to work late, left work early and made a habit of texting on short notice (2-3 hours before the start of his shift) that he would not be able to come to work and never gave any explanation as to why. This became his regular habit, and he caused inconvenience to the Respondent on multiple different occasions and showed the Respondent that he was not in the slightest bit reliable. The Respondent refers to various WhatsApp messages received by the Respondent from the Complainant, (Exhibit 5), where he would state that he was unable to attend work that evening. Yet the Respondent still accommodated him, even though it inconvenienced the Respondent and the Respondent would be required to find a replacement person to work on such short notice. It is difficult to believe how the Complainant could have understood that he had an entitlement to be promoted to the role of Head Chef in those circumstances. In any case the Respondent did not have a vacant position of Head Chef to fulfil. 

Contrary to what is asserted by the Complainant, the Respondent did offer an increase in wages with increased hours to the Complainant in March 2018; however, the Complainant declined this offer as he was concerned about it affecting his social welfare payments. In response, the Complainant asked the Respondent to simply not show any additional hours to the Revenue Commissioners and pay him the extra wages in cash illegally. He also requested the Respondent to reduce his usual 25 hours of work from the Revenue documents, so that he could receive more social welfare payments. Raju Hassan refused to condone such misconduct and the request for illegal work. Since declining this request, Raju Hassan felt a sort of resentment or anger from the Complainant thereafter; but Raju Hassan couldn’t pay any heed to it as what the Complainant was asking was illegal and unacceptable.

ALLEGATIONS OF BULLYING

The Complaint alleges that he was bullied by Raju Hassan, by his brother and his father; as well as being ill-treated and put to work in a degrading work situation. This is strenuously denied by the Respondent and the Respondent points to the fact that the Complainant worked with the Respondent for 5 consecutive years and the Respondent will state that not once was the Complainant mistreated or ever given any degrading work. Raju Hassan believes that, where the Complainant is saying that he was put in a degrading work situation, it is his ego speaking, because he was denied the role of Head Chef. The role of an Assistant Chef is in no way degrading. As to his assertion, saying he was ill-treated and bullied, the Respondent demands that, in advance of the Hearing, the Complainant clarifies in writing how he was bullied. 27. The Respondent will give evidence that they always treated the Complainant as family and with respect and honour; and, not only treated him like family in the restaurant, but even went as far as inviting him and his family to their house, not once but on many occasions for lunch, dinner, and any party they would host. The Respondent has included in the Booklet of Exhibits copy photographs showing the Complainant and his family with the Respondent’s family. In return, the Complainant also invited the Respondent’s family to his house on many occasions and the Complainant and the Respondent’s family also went on many trips together around Ireland. The Respondent questions that, if the Complainant was so helpless, bullied and ill-treated as alleged, why would he attend these parties with his family or invite the Respondent’s family to his house? The Respondent states that all this evidence demonstrates that the Complainant was never ill-treated or bullied and not in any way exploited by Chilli Lounge, as he asserts in his Submission.

CLAIM OF CONSTRUCTIVE DISMISSAL

The Complainant alleges in his Submission that he was forced to leave his job due to the conduct of the Respondent. The Respondent can positively say that this was never the case and that the Respondent always treated the Complainant with respect and kindness. The Respondent states that the Complainant was never treated in an unfair way which would force him to leave his job. This again is a false allegation and its falsity is proven by the documentation furnished in the Booklet of Exhibits. On the 10th of January 2023, the Complainant texted Raju Hassan on WhatsApp, requesting to speak to speak to Raju Hassan privately in Chilli Lounge at 11am. The Respondent refers to a screenshot of this message exchanged in the Booklet of Exhibits. When they met, the Complainant informed Raju Hassan that he wished to leave this job soon but he didn’t inform Raju Hassan when exactly he would be leaving. During that conversation Raju Hassan asked the Complainant his reason for leaving this job. This notification came as a shock to Raju Hassan because, as far as Raju Hassan was concerned, they always considered him family and he asked the Complainant if there was any obligation to him which they failed to fulfil. The Complainant assured Raju Hassan that he was satisfied with their work environment and that he had no grudges against the Respondent. He was thankful for the experience he had gained from working with the Respondent. The Respondent questions that, if they had treated the Complainant so unfairly and he was so fed up with this work environment, why didn’t he mention it here when he was leaving?

During that conversation also the Complainant then went on to inform Raju Hassan that the actual reason for him leaving the job was that he wished to open his own Indian restaurant in Cavan town along with his friend, named Kowser Islam, who had recently moved to Ireland from Italy, which they named Indian Spice. Upon hearing this, Raju Hassan congratulated the Complainant and wished him the best of luck. The Respondent did however expect that the Complainant would give him reasonable notice before he did leave his employment. However, not only did the Complainant not give the minimum one month’s notice required under his Contract of Employment, but he failed to give any notice; other than one night’s notice before he was due to leave the next day.

On the 25th of February 2023, the Complainant texted Raju Hassan on WhatsApp, saying that he wished to cease his employment willingly from the next day. The Respondent refers to the screenshot of this WhatsApp conversation exhibited in the Respondent’s Booklet of Exhibits where the Respondent stated: “Salam bhi I gonna finish tomorrow night? I hope you don’t mind and I want fare with you I hope you to thanks”.

By this message he was telling Raju Hassan that he was giving him one day’s notice and hoped that he didn’t mind. By giving Raju Hassan one day’s notice, he apparently was claiming that he hoped that he was being fair with Raju Hassan and thanked him.

The Respondent submits that this is hardly the language of an employee leaving his employment in circumstances where he believed that he was being ill-treated at his workplace.

Raju Hassan met the Complainant on the 27th of February 2023 and provided him with any remuneration and remaining obligations towards him. The Complainant was happy upon receiving them and they amicably ended their contract.

THE COMPLAINANT`S NEW BUSINESS

The Complainant, from the time he resigned in February 2023, was working with his partner with a view to setting up his new Restaurant Indian Spice in August 2023.

The Respondent questions why, almost 6 months after the Complainant ceased his employment, the Complainant is now making these false allegations. This has been very disheartening, upsetting and distressing for the Respondent’s family; particularly in circumstances where the Respondent strongly believes that they treated the Complainant very well and at all times with due respect.

The Respondent has also found out, through their community, that after ceasing his employment the Complainant has been working at his friend’s Takeaway Restaurant, while preparing to open their restaurant in Cavan town.

In conclusion, the Respondent states that the Complainant has made, not one but, multiple false allegations against the Respondent and their restaurant in an attempt to defame the Respondent and ruin their reputation in the community, with hopes that his own Indian restaurant can succeed and so the Respondent loses their customers. Why otherwise would the Complainant have left it so late within which to issue this Complaint to the WRC? If he was treated as badly as he claims he was, would he not have issued this Claim shortly after he resigned? The Respondent believes that the Complainant has attempted this as he wants no competition for his restaurant, and he considers the Respondent’s restaurant a threat to his. The Respondent states that they have earned this respect and fame for their restaurant fairly and through their hard work over the years. By making such false allegations the Complainant is not only speaking badly of the Respondent’s family but, he is also causing huge distress and strain on their health. The community of Indians in Ireland is a small community, and the Complainant knows that such allegations are very damaging.

The Respondent also respectfully submits that, between working part-time and working to prepare for the opening of this new restaurant, the Complainant would not have been available for work for the Respondent or any other employer between the months of February and August 2023 and was certainly not available thereafter.

MITIGATION OF LOSS

The Respondent requires proof that the Complainant succeeded in mitigating his loss as he is required to do under Section 7(2)(c) of the Unfair Dismissals Act 1977.

THE STATUTE OF LIMITATIONS – SECTION 27(4) OF THE ORGANISATION OF WORKING TIME ACT,1997

While it is acknowledged that the 6-month time limit referred to a Section 27 (4) can be extended in certain circumstances “due to reasonable cause”, in accordance with Section 27 (5) of the Act, it is respectfully submitted that there are no circumstances whatsoever in which this 6-month time limit should be extended to 12 months, bearing in mind the circumstances as outlined in this Replying Submission. If the Complainant was as badly treated, as he alleges he was in his Complaint, then surely he would have made such Complaints at an earlier date? There can be no reasonable cause for the Complainant to make such complaints against the Respondent at such a late time.

THE LAW ON CONSTRUCTIVE DISMISSAL

Constructive Dismissal is defined in Section 1 of the Unfair Dismissals Acts 1977 (as amended) as: “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 the employment without giving prior notice of the termination to the employer.”

The Necessity to Give Notice of Termination

In the first instance, the circumstances in which the need for notice of termination can be disregarded are highly unusual. In the Third Edition of Redmond on Dismissal by Desmond Ryan, Complainants are excused from giving notice of termination in exceptional circumstances only. For instance, in the case of Linda O’Donoghue v Watchford Limited t/a Supermacs, [2016] ELR 216, the need for the Complainant to give notice of her termination was dispensed with in circumstances where she was found guilty of gross misconduct following a defective disciplinary process. It is submitted that no such exceptional circumstances exist in the herein case.

The Two Tests

There are two tests by which a constructive dismissal can be assessed: the Contract Test; and the Reasonableness Test.

If the Contract Test is used, there must be a breach of contract which must be either so significant that it goes to the root of the contract or one which shows that the employer no longer intends to be bound by one or more terms of the contract.

In the circumstances of the herein case, the Respondent contends that the Complainant, by failing to give the Respondent the opportunity to deal with his grievance, is not in a position to confirm that there was a breach of contract – let along a significant breach or one which indicated that the employer did not wish the contract to continue

The Reasonableness Test requires this Commission to consider the conduct – particularly of the employer but also of the employee. A central requirement for “passing” this test is for the employee to demonstrate that he or she had invoked the employer’s grievance procedures in an effort to resolve his or her grievance. Where no formal grievance procedures exist, there is an onus on the employee to communicate his or her displeasure with an appropriate personage. While it is accepted that the Grievance Procedure in the Respondent’s Contract of Employment was very short in nature, it did clearly demonstrate to the Complainant that, if he had a genuine grievance, he was entitled to raise that issue with his employer.

 In the case of Conway of Ulster Bank Limited UD474/81, the Employment Appeals Tribunal came to the conclusion that it was unreasonable for an employee to resign in circumstances he had not fully pursued the bank’s grievance procedure.

However in the more recent case of Smith v RSA Insurance Limited UD1673/2013, the Employment Appeals Tribunal noted the Conway decision but decided that Mr Smith could be excused for failing to utilise his employer’s grievance procedure because of ten separate factors which suggested that the Respondent had adopted a hostile position to him and his continuing employment. Towards the final months of his employment, RSA Insurance Limited had refused to provide him with information about an investigation into alleged wrongdoing; his licence had been revoked; he was asked to stay away from the workplace; and his suspension was announced on national television before he was informed himself. In other words, the Respondent in that case had behaved in such an egregious manner that he was not bound by the duty to utilise available grievance procedures. The Complainant’s case can be differentiated from the Smith case because no such hostility existed; on the contrary, there was a high degree of mutual trust and confidence between the Complainant, the Respondent and Mr ….

The Respondent contends that the Complainant utterly failed to raise any grievance. His decision to resign was intemperate and was taken without giving any opportunity to the Respondent or to Raju Hassan to deal with his difficulty in a constructive manner.

CONCLUSION

No objective assessment of the Complainant’s actions before or after his decision to resign can support the assertion that there was a breach of contract – let alone a significant breach of contract – by or on behalf of the Respondent.

The only reasonable conclusion as to why the Complainant left his place of employment was because he wanted to set up an alternative restaurant business with his friend and, having had almost 6 months to do so, he has since decided to make spurious allegations against the Respondent in an effort to damage the Respondent’s business and, in the Complainant’s eyes, enhance the reputation of the Complainant’s new restaurant.

It is submitted that on either of the two tests, the Complainant’s case must fail.

CA – 00058508 – 001. Submitted under section 7 of the Terms of Employment (Information) Act 1994.

The complainant contends that he was not issued with a statement of the particulars of employment (often referred to as a contract). The respondent stated that a statement was issued but they were unable to produce a copy of said statement.

Contained within a booklet of papers produced by the respondent there was a copy of a document headed Terms and Conditions of Employment. The name on this document was the complainant’s name and all of the detail inserted in the document matched the complainant’s details e.g. start date, times of work etc.

I am satisfied that the complainant was issued a statement in compliance with the Act. This complaint is not well founded.

CA – 00058508 – 002. Submitted under the Organisation of Working Time Act 1997.

The complainant contends that he received no breaks during his working hours. The respondent states that the complainant did take breaks during his working day and very often the complainant, being Muslim, would spend his breaks praying. The complainant is or was a smoker and would often take smoking breaks during his working hours.

Section 27 (6) of the Organisation of Working Time Act states the following:

(6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

The complainant failed to provide any particulars in support of his claim.

CA – 00058508 – 003. Submitted under the Organisation of Working Time Act 1997.

The complainant contends that he did not receive his paid holiday / annual leave entitlement. The Complainant took holidays in 2020 and 2022 and states he was not paid for these holidays.

The respondent states that the complainant was paid all his statutory leave / holidays.

Section 27 (4) of the Act states:

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I am unable to consider holidays taken in 2020 and 2022, they are outside the cognisable period set out in the Act.

This complaint is not well found.

CA – 00058508 – 004. Submitted under the Organisation of Working Time Act 1997

The Complainant contends that he did not receive his public holiday entitlement.

Section 27 (6) of the Organisation of Working Time Act states the following:

(6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

The complainant has failed to provide any particulars in support of this allegation.

This complaint is not well found.

CA – 00058508 – 005. Submitted under the Organisation of Working Time Act 1997.

The complainant contends that he was not paid compensation for working on a Sunday.

The Complainant alleges that he did not receive his Sunday compensation. Raju Hassan can also verify that he was paid his Sunday compensation any time he worked on Sundays; but generally he was not asked to work on Sundays.

Again, the complainant has no particulars to back up his allegation.

This complaint is not well founded.

CA – 00058508 – 006. Submitted under the Payment of Wages Act, 1991.

The complainant contends that the respondent did not pay him the proper amount of wages or less than the amount due to him.

The Complainant alleges that he was paid less than his entitlement. This is denied as recorded in the Complainant’s Contract of Employment, he worked 25 hours per week and was paid €10.50 per hour, which rate had been increased to €11.30 per hour from January 2023.

This complaint is not well founded.

CA – 00058508 – 007. Submitted under the Unfair Dismissal Act 1977.

The complainant states that he had to leave his job due to the conduct of his employer or others at work (Constructive Dismissal), he had at least 12 months service.

The Respondent has mentioned section 1 of the Unfair Dismissals Act 1977 which states:

 “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 the employment without giving prior notice of the termination to the employer.”

Prior to resigning from his position, the complainant should have utilised the internal grievance procedures. (Ref: Conway v Ulster Bank Limited UD 474/81).

This complaint is not well founded.

Please see above.