Case Number: ADJ-00003816. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00003816
Date01 May 2017
PartiesA Restaurant Manager v A Restaurant

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003816

Complaint for Resolution:

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-00005603-001

30/06/2016

Date of Adjudication Hearing: 21/03/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Location of Hearing: Room 4.02 Lansdowne House

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 respondent restaurant was taken into new ownership. In the course of the first week difficulties arose between the owner and the manager. Initially following a period of sick leave the complainant resigned from his position. He claims that he was the subject of a constructive dismissal.
Summary of Complainant’s Case:

The complainant says that he was subjected to verbal abuse by the new owner and that he was denied the right to take cigarette breaks. He was told that if he took them he would be subject to disciplinary action.

He says he was verbally abused in the course of this meeting, after which he became unwell.

There was also a deterioration in the quality of the meals made available for staff and he was asked to clean the toilets.

He had other duties taken away such as the taking of reservations and his role in menu planning.

Therefore he decided to resign his position and regards himself as having been constructively dismissed.

Summary of Respondent’s Case:

The current respondent acquired the restaurant on May 23rd 2016.

The complainant transferred under the TUPE regulations. On the day of the transfer the new owner met the employees to introduce himself and to reassure them about their continuity of employment. He offered to speak on an individual basis to anyone who wished to do so.

Some days later at about 2pm on Saturday, May 28th he needed to talk to the complainant during service to learn that he was on a cigarette break. The owner told him it was not acceptable to take such breaks during ‘service’ when the restaurant was busy.

They agreed to meet later to discuss it.

When they did meet there was an altercation between the complainant and the owner. A full account of the incident was submitted in evidence. It describes events in which the complainant became very agitated and verbally abused and insulted the new owner using foul language.

The complainant told him that he was going to resign and when told he would need to put that in writing he invited the owner to write it for him, which he refused to do.

The owner sought to reassure and calm him and invited him to take his break which was then due.

On the complainant’s return at 6pm the General Manager met him and raised his earlier conduct, saying that such aggression was unacceptable. The complainant continued to be angry and abusive and indicate that he was sick and was going to go home.

The following day the complainant sent the General Manager a letter in the course of which he attributed his sickness to mistreatment at the hands of the owner. The owner replied stating his view that the purpose of the meeting had been to address the complainant’s unacceptable conduct and referred him to the grievance procedure. The general manager advised him that any grievance should be directed to him.

The complainant remained on certified sick leave but was assured that the respondent wished to facilitate his return to and on June 2nd advised that he wished to be advised of the procedure to be used in the grievance procedure, stating ‘I will let you know if I want to start it’.

This he did on June 9th, enclosing only the letter of complaint previously submitted immediately following the incident on May 27th. He sought a further update on June 14th but stated that due to the alleged conduct of the owner ‘and the lack of an apology’ the only solution he could see was that ‘he no longer works’ for the respondent.

The respondent contacted him the following day stating that it would meet him to discuss his grievance and with a view to resolving any issues he had. He pointed out that such a meeting could not take place until the complainant had been certified fit to participate which could not be before a medical examination on the 22nd.

The complainant replied submitting his resignation.

The General Manager wrote asking him to re-consider but the respondent heard nothing further until it received notice of the WRC proceedings.

Findings and Conclusions:

The complaint is that the respondent was the victim of a constructive dismissal.

A constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract, or that the employer has through their actions effectively broken the contract. The burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases of the normal type.

A breach of the employment contract sufficient to fall under the Unfair Dismissals Act must be very serious and well justified, by whomsoever it is effected; employer or employee.

In this case the key events can be compressed into a very short period and more or less constitute a single episode, which in itself is significant, before the complainant went on sick leave. There was no continuing conduct by the respondent which might justify the complainant’s actions after the commencement of the sick leave period, indeed quite the opposite.

The direct evidence of the owner and of a witness to the hearing, as well as contemporaneous notes of the events indicate a complete loss of control by the complainant on the day on question.

Direct evidence given at...

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