Sneem House Hotel Ltd t/a Sneem Hotel (Represented by Clodagh Brick B.L, Instructed by Malone Hegarty Solicitors) v Mr Auke Schots (Represented by Lane Kelly Associates)
| Jurisdiction | Ireland |
| Judgment Date | 06 December 2022 |
| Judgment citation (vLex) | [2022] 12 JIEC 0603 |
| Docket Number | FULL RECOMMENDATION ADJ-00029071, CA-00038763-001 DETERMINATION NO. UDD2268 SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
UD/22/26
ADJ-00029071, CA-00038763-001
DETERMINATION NO. UDD2268
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
Full Court
Chairman: Ms Connolly
Employer Member: Mr O'Brien
Worker Member: Ms Tanham
1. Appeal Of Adjudication Officer Decision No(S) ADJ-00029071, CA-00038763-001
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 10 February 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 12 October 2022. The following is the Determination of the Court:
This is an appeal by Mr Auke Schots (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00029071—dated 10 January 2022) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant's claim of constructive unfair dismissal by his former employer Sneem House Hotel T/A Sneem Hotel (“the Respondent”) was not well-founded. The Court heard the appeal in Cork City on 12 October 2022.
The Complainant was unfairly dismissed from his employment by reason of constructive dismissal on 13 of February 2020, after his employer informed him at a meeting in January 2020 that they wanted him to step down from his role as Head Chef.
As Head Chef the Complainant was responsible for all aspects of the kitchen including food, weddings, purchasing, stock, and department profitability. The kitchen was a particularly hectic workplace with chronic staff shortages which meant that staff had to work excessive overtime and extra rosters. Notwithstanding these difficulties the Complainant was repeatedly complemented on his performance by guests, the general manager, and the owner.
In April 2019, three kitchen staff left to go to a competitor which placed a great strain on the remaining kitchen staff in terms of hours of work, rostering, and overtime. The Complainant made suggestions as to how staffing problems could be addressed in the future. In early 2019 the Complainant suffered health problems. He underwent tests and was deemed to be suffering from back pain and significant signs of stress and overwork.
On 16 October 2019, the Complainant attended a management meeting to review operations. After that meeting the General Manager emailed a memo to him on 19 October 2019 setting out six key discussion points, which she asked the Complainant to address as a matter of urgency. The six issues were commitment to the job, personal use of mobile phone, use of bad language, training of staff, menus, and interviews. There was no reference to a disciplinary warning in the memo.
On 24 October 2019, the Complainant suffered a family bereavement. He worked his normal shift on 25 October and was required to work on 26 October although he had arranged cover. On his return to work he could not arrange cover for a scheduled medical appointment on 31 October. In frustration he told the General Manager that he was fed up with his position and no longer wished to be Head Chef. He regretted his action and within minutes told the General Manager that he was fully committed to his job. He cancelled his medical appointment of 31 October.
On 22 January 2020, the Complainant was summoned to a meeting with the General Manager, Ms Nicola Duggan, and the hotel owner, Mr Louis Moriarty. He was told that they wanted him to step down as Head Chef, as they had no confidence in his ability to lead a team. Mr Moriarty said in an offhanded manner that the position of sous chef was available if the Complainant wanted it.
On returning to the kitchen it was apparent to the Complainant that the other chefs had been advised earlier of what was to happen. He continued to fully carry out his duties as Head Chef. The General Manager acted as if nothing had happened. On 23 January 2020 the Complainant became aware that his position was being advertised. A former relief chef, Mr Paddy Mahon, told him that he had been approached to take up the position of Head Chef.
The Complainant was in limbo. He subsequently made four unsuccessful attempts to raise a legitimate grievance to appeal the decision to dismiss on 22 January which were ignored. The Respondent's continued refusal to open a grievance indicated to the Complainant that the matter was unresolvable. He believed he had no option but to resign as he saw the new job description as a deliberate raising of the bar to set him up to fail. He no longer trusted the Respondent.
On 13 February the Complainant resigned by letter in which he set out at length the sequence of events and once again iterated his request for an appeal. There was no attempt to arrange an appeal.
The Complainant submits that his employment contract was terminated when he was advised that the Respondent wanted him to step down from his position. No prior warnings were issued. No prior disciplinary hearing was held. He was not given a fair chance to appeal that decision or refute any complaints. When the Complainant saw the online advert for his position and was advised by a former colleague that he had been contacted to take up the position, the Complainant was convinced he had little chance of remaining at work, notwithstanding his several efforts to initiate a meeting to discuss matters.
The Respondent deliberately frustrated each of the Complainant's attempts to raise a grievance or to initiate a discussion and acted unreasonably by ignoring a month of emails. Ms Duggan had no right to determine if a grievance existed. He was not treated as a valued employee and the Respondent totally destroyed any trust that existed. The Complainant had no option but to formally resign. In all the circumstances the Complainant was unfairly dismissed or dismissed by reasons of constructive dismissal.
A number of difficulties arose regarding the Complainant's work conduct and relationship with staff. At a meeting on 16 October 2019 a number of these issues were brought to his attention relating to (a) use of bad language in the kitchen area, (b) training of staff, (c) menus, (d) interviews and (e) use of mobile phones in the kitchen area. The Respondent requested that these matters be addressed as a matter of urgency. This request was reiterated in a memo sent to him on 19 October 2019.
A meeting was held on 22 January 2020 to discuss ongoing issues as no improvement was evident. The stress associated with the role of Head Chef was discussed at that meeting. The Respondent enquired if a role with less responsibility would suit the Complainant better. The Complainant confirmed that he was fine in his role and would continue as Head Chef.
The Respondent refutes that a decision was made to remove him as Head Chef. He was not removed from his position. He continued in that role in late January and February 2020. A new job description was shared with him.
The Respondent refutes that the Complainant's efforts to appeal a decision made to remove him as Head Chef were not responded to. The Complainant was provided with a job description and accepted a request to attend a meeting to discuss that job description, which is directly contradictory to his assertion that a decision was already made to remove him as Head Chef.
It is not clear why he sought to appeal the alleged decision to remove him as Head Chef whilst he simultaneously agreed to meet to discuss the revised job description. The Complainant seems to have incorrectly considered himself to be dismissed. The Complainant appears not to have realised how his contradictory correspondence was received and understood by the Respondent.
The Respondent did not advertise the Complainant's job or authorise any party to do so on their behalf. A job advertisement produced in evidence appears to relate to another hotel with an address on the same road some distance away.
The Respondent refers the Court to the case of Berber v Dunnes Stores (2009) IESC 10 where the Supreme Court set out the test to be considered in assessing if constructive dismissal has in fact occurred and finding as follows:
• (a) that the test is objective
(b) that the test requires that the conduct of both employer and employee be considered
(c) that the conduct of the parties as a whole and the accumulative effect must be looked at and
• (d) the conduct of the employer complained of must be unreasonable and without proper cause and its effects on the employee must be judged objectively, reasonably, and sensibly in order to determine if it is such that an employee cannot be expected to put up with it.
The Respondent submits that in considering the cumulative effect of all interactions concerning the conduct of the employee and the employer they do not amount to unreasonable behaviour on the part of the employer.
A Respondent has a duty to protect staff and an obligation to ensure that the Complainant was able to do his work in an environment that did not cause stress and upset to him and to his fellow employees. It is in that context that the various discussions outlined occurred. The Complainant was not dismissed, and he would be in his employment up to this time if he had so wished.
There is an onus on the Complainant in alleging constructive dismissal to show that the behaviour of the Respondent was such that they had no alternative but to resign from their employment. The onus has not been discharged in this instance. The Complainant continued his role as Head Chef and was identified as such in written communication even after the alleged decision to remove him, which was not the case. The Complainant's belief that he was removed from his...
To continue reading
Request your trial