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The case of A Restaurant Manager v A Restaurant Chain ADJ-00026723 concerned a case of constructive dismissal whereby the employee argued that he was dismissed from his employment at the end of a disciplinary process which crossed over with a request to move him to a place of work which he was unable to get to.

Background

The employee worked with the company restaurant chain since June 2016 and became an assistant manager in 2019. Issues around around the complainant’s performance when an allegation was made that he was not carrying out his functions in a satisfactory manner including taking the temperature of raw meat and the detailing of a weekly hazard sheet. The employee vehemently denied the allegations and felt he was being singled out by his manager. In the end the employee was given a six month verbal warning on 10th December 2019 and the written confirmation of the sanction was not sent until 7th January. A few days after the disciplinary process had been completed, the area manager contacted the complainant to see if he was willing to move to a sister restaurant in South County Dublin. Although there was a flexibility clause in the contract, the complainant felt the move was being imposed on him and felt very fearful. The complainant wrote to the company outlining why the move would not suit him and the company arranged to meet with him. Ultimately the meeting did not take place as the company learned that the employee was voluntarily taking up a new position in a different establishment. As the employment was over the employee did not appeal the sanction. The employer denied that the employee was constructively dismissed.

Findings and Conclusions

The Adjudicator noted “I certainly accept the Complainant’s evidence that he had not considered leaving this workplace until the Disciplinary process so described was initiated. He was, I accept, genuinely fearful that he was going to be fired and/or that his pushback on the allegations being made against him would make his working relationship with Management very difficult in the future”. She also observed that the complainant lived far away from the new location and that it would add a travel time of up to two to three hours and that “I do not doubt that the proximity of the verbal warning and disciplinary process to this proposed move to another restaurant, played heavily on the Complainant’s mind. He could not be blamed for thinking that the two were linked”.

The Adjudicator found on balance that On balance that “……….the company were correct in believing that the Complainant was voluntarily taking up a new position at a different type establishment” and that he was told “….he would not ultimately have had to move to the Dun Laoire establishment. I believe that the Complainant’s then frame of mind is quite clear from his upbeat facebook message posted later that same day wherein he explains that after three and a half years and meeting some amazing people an opportunity had arisen he could not refuse. There is no bitterness and no regret, and I am satisfied that as of the 23rd of December the Complainant had formed the intention to leave of his own volition”.

The Adjudicator observed however that the investigative and disciplinary process did trigger the claimant’s search for alternative employment and that on on 28th of December 2020 the Complainant wrote an email to the company purporting to withdraw his tendered resignation as he stated he felt rushed and had believed that he was being bounced into moving to another premises. He also asked the company to meet for a chat and stated that he did not want to leave and believed he had so much more to offer. She commented

“To my mind this has the hallmarks of a cooling off period giving rise to focus and clarity and a desire to reverse a decision made in haste or through fear or anger or without the full facts. Such reversals are often sought in the workplace – sometimes appropriately, sometimes not” In this case the company felt that the complainant would be better served by not returning to work and that the “work-life balance….presented to her as part of his reasons for moving could only be achieved if he moved on”.

The Adjudicator also found it “… quite surprising that the Complainant’s request to be allowed remain in the workplace (and I note he was still working out his Notice period) was refused without conversation and that B simply told him that his reasons for wanting to move were sufficient for her denying him an opportunity to stay”. She found a dismissal occurred at this point in time.

The employee was awarded €6,200 in this case in respect of the financial loss suffered by him.

Employment Law Case Tip

Employers beware of an employee who tenders his resignation and then seeks to withdraw it. It is good practice to consider that the employee may have acted in haste and to give the employee an opportunity to reconsider. It is always goof practice to write to an employee who has resigned to ask them to reconsider and allow the employer an opportunity to address any concerns they may have.

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