Complainant

Respondent

Parties

James Sean  Danaher

Dundalk Racing 1890 Dundalk Racing 1890

Representatives

Aaron Shearer B.L. instructed by Derek Williams & Co, Solicitors

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-00070560-001

03/04/2025

The complainant  gave evidence on affirmation.

He described an incident on November 2nd with a waitress which got heated and following which he left the kitchen.

There was a second incident with the restaurant manager, and he accepts that he ‘cursed’ in the course of this. On November 6th he apologised to that person for his actions.

 Also on that day he sent two emails to the CEO of the respondent who arranged a meeting the following day. At that meeting he requested a formal investigation as he thought that his version of what had happened had not been properly heard.

He says that this meeting concluded with agreement that the matter would be returned to the following day. However, he claims that after having said this he changed his mind and decided he would not come to work the following day.

He wanted an allegation of sexual harassment withdrawn.

He had no further engagement with the issue after that.

The respondent operates Dundalk Racecourse and as part of its operations offers on-course dining for racegoers. The complainant was engaged as Head Chef on a contract of employment dated February 6th, 2023, at a starting salary of €45,000 pa. It had been increased to €47,000 pa at the time employment ended. He resigned on  November 8th, 2024

Two particular sections of the contract are highlighted. The first is Section 12 which is a broad outline of the company's grievance policy.

The second is Section 14 - "Disciplinary and Dismissal Procedure". In this section examples of gross misconduct are given. One such is "physical or verbal assault on another employee...who is authorised to be on the company's property".

The complainant, after a fashion, raised a grievance but as will be seen, he did not allow that grievance process to be resolved before resigning. He verbally assaulted two members of staff. No disciplinary action was either threatened or commenced but an obvious explanation for the complainant's resignation seems to be that he wished to avoid disciplinary proceedings against him.

The complainant provides a narrative around what happened at work from November 2nd  to 8th  November 2024. These are details of what happened during those six days.

There was an incident between the complainant and a member of the floor/waiting staff during service on November 2nd, a Saturday night.

By his own admission he cursed and shouted at his co-worker during this exchange. Later that same evening there was a verbal exchange between him and the Restaurant Manager (Jennifer Malone) wherein, she says, he cursed at her also.

The next race meeting was on Wednesday November 6th. The complainant spoke with Ms Malone and apologised to her for his behaviour the previous Saturday evening but indicated that he was not prepared to apologise to the waitress.

He sent two e-mails to the respondent's CEO, Jim Martin, at 1.29pm and at 2.09pm. In the second e-mail he complained that blame (for the incident on November 2nd) had been unfairly apportioned to him.

Mr Martin made arrangements to discuss the events of Saturday  November 2nd, with the parties and met separately with the complainant and the Restaurant Manager, Ms Malone on November 7th. He conducted a third meeting with both parties. Each of the three meetings took place in the boardroom at the racecourse and was also attended by Elaine Carron, Financial Controller.

Ms Carron prepared a memorandum of each meeting based on notes she had taken at each meeting. The memoranda make it clear that the complainant would not apologise to Katie.

Another matter arose involving an interactionbetween the complainantand Ms Malone and Katie before service began on 2 November.Ms Malone was introducing Katie to the complainant.TheComplainant didnot know Katieandasked whoshewas.Hewas toldbyMsMalonethatKatie'snamewasonhernamebadge.

TheComplainant said he could not look at the name badge as itwas over her breast, and he did not want to beaccused of lookingatthat part ofher body.

The memorandum of the joint meeting mentions a discussion about this comment and recites that the complainant acknowledged that he had made the remark attributed to him but that he meant nothing by it.

Later on  November 7th, the Complainant contacted Ms Carron by text and arranged to meet her in Ms Carron's office. The Complainant said he wanted the allegation that he had been sexually inappropriate (in relation to the badge comment) to be withdrawn by Ms Malone. The Complainant advised that if the allegation wasn't withdrawn that he would not be at work the following day. After the meeting Ms Carron contacted Mr Martin and advised him of the situation.

Mr Martin texted the Complainant (on November 7, at 3.45pm). He received a reply to that text the following morning. The text exchange speaks for itself. Following the said text exchange and a conversation with the complainant's wife, Mr Martin was given to understand that the complainant had resigned his employment and regarded himself as having been constructively dismissed.

On November 15th, the respondent sent a letter to the Complainant addressing the various issues arising and confirming the termination of employment.

The text sent to Mr Martin by the complainant on November 8th  gives an explanation for his resignation. He stated that he had been constructively dismissed in  circumstances where allegations made against him were not withdrawn. The text is not explicit but what is understood that he believed he had been accused of being sexually inappropriate. He added that the HR process in the stadium was flawed and that he would no longer engage with it.

No allegation of sexual impropriety was made against him. Moreover the comment he made about a name badge positioned over the waitress’s breast was one he himself acknowledged he had made and which he himself acknowledged to be an inappropriate comment.

The complainant used strong language to two members of staff at work on 2 November and that he apologised to one member of staff but would not apologise to the other.

Also  the complainant was unhappy (after his private conversation with Ms Malone) that she had anointed herself as judge, jury and executioner in the matter and that he complained about this to the CEO on 6 November

The CEO met with all relevant parties on November 7th. trying to understand the issues and shortly after these meetings the Complainant met with Elaine Carron and told her that unless (what he described as) an allegation that he had been sexually inappropriate was withdrawn that he would not be at work the following day.

In fact he did not come to work the following day.

ThelegaltestinrespectofconstructivedismissalwasprovidedbytheUKCourtof IAppealinthecaseofWesternExcavating(ECC)Limitedv.Sharp[19781ICR221.This test was endorsed by the Labour Court in Paris Bakery & Pastry Limited v. Mrzljak DWT1468.

It comprises two tests, referred to as the 'contract' and the 'reasonableness' tests.

The above UK case summarised the 'contract test' as follows:

"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 further performance''.

Thus, there needs to be a repudiatory breach on the part of the employer which can arise from a single act, but which must be sufficiently serious to justify the employee resigning. It is not enough that the employer's conduct is unreasonable.

The bar is much higher. It must amount to a fundamental breach of the contractual employment terms such that the employee can treat the contract as at an end by reason of the employer's repudiatory conduct. Nothing that the Complainant complains of (in terms of the Respondent's conduct) comes close to meeting this test.

The guidance given for deciding if there has been a breach of the implied term of trust and confidence is set out in another UK case Malik v. BCCI; Mahmud v BCCI 1997 1 IRLR 462 where Lord Steyn said that an employer shall not "

 ...without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

The test of whether there has been a breach of the implied term of trust and confidence is objective. There is no breach of trust and confidence simply because the employee subjectively feels that such a breach has occurred no matter how genuinely this view is held.

The legal test entails looking at the circumstances objectively, i.e., from the perspective of a reasonable person in the complainant's position (Tullett Prebon PLC v. BGC Brokers LP (20111IRLR 420, CA)

The burden of proof lies with the complainant to show that his resignation was justified in all the circumstances. In order to establish that there was a constructive dismissal, the complainant must show that  there was a fundamental breach of contract on the part of the employer, the employer's breach caused the employee to resign; and the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

The complainant's attempts to categorise the employer’s conduct as unreasonable and repudiatory are not supported by any evidence and certainly do not meet the threshold to show he was constructively dismissed.

The facts set out above, while somewhat confused in their detail are sufficiently clear to present a picture of what happened. There were two incidents, one involving the restaurant manager, and a second (which had preceded it) involving a new member of the waiting staff.

The complainant was willing to apologise for the former and did so but refused to address the second and viewed it as an allegation of sexual harassment which he wanted withdrawn.

The respondent denies that there was any such allegation made, and implies that this was merely how the complainant chose to describe the event.  This episode turns on a really trivial exchange centring on whether the complainant said he would not look at the co-worker’s name badge because of where to was located on her body (her chest area). There was a dispute about whether he used the word ‘breast’.

The respondent acted speedily when the matter was brought to its attention and arranged a series of meetings the following day with the parties separately and then together. This ended amicably, if inconclusively with the complainant agreeing that it could be sorted out the following day.

However, within a short time he had changed his mind and decided he would not come to work the following day. He confirmed in his evidence in response to questions that nothing had happened in the meantime to trigger this change of mind.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.  It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Act is when an employer has terminated the employment, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning. In most, if not all cases an action for breach of the employment contract is unlikely to arise.

But when an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal then that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that.

 ‘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.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

This eloquently sets out the bar that an employee has to meet.

While the behaviour of the employer is critical, the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

This tribunal and its predecessor has made it clear in a series of decisions that the requirement to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above) before the bar referred to above can be said to have been met. The following is relevant in this case.

In Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant do not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

I find that the complainant has come nowhere close to meeting any of the legal tests set out in the jurisprudence above for a constructive dismissal.

In relation to the respondent’s conduct it acted speedily and effectively in responding to the complainant’s grievance; effectively in the sense that  progress had been made and the complainant indicated the issue was capable of being resolved the following day.

The complainant’s explanation for his peremptory change of mind and walking away from the process was completely without merit or sense and he essentially robbed the respondent of the opportunity of resolving the issue. Specifically the status of the allegation of sexual harassment, which the respondent denies ever making could easily have been addressed in further discussions. His lack of trust in the respondent’s HR processes had yet to be put to the test.

A complainant in a complaint of constructive unfair dismissal must, at the very least, have exhausted the workplace grievance machinery before breaking the contract of employment. He has every right to change his mind of course, but having done so in the manner represented by  these facts will disbar him from any remedy under this legislation.

The complaint fails and is not upheld.

For the reasons set out above Complaint CA-70560-001 is not upheld.