Labour Court Database __________________________________________________________________________________ File Number: EED951 Case Number: EEO952 Section / Act: S27EE Parties: DUNNES STORES, DUN LAOGHAIRE (Represented by MATHESON, ORMSBY, PRENTICE, SOLICITORS) - and - A WORKER;MANDATE |
The dispute concerns the alleged unfair treatment of a worker in contravention of Section 2(a), of the Employment Equality Act, 1977.
Recommendation:
The issue before the Court was a claim by the worker that he was
'constructively dismissed' because of his failure to comply with a
requirement, which, he considered, came within the ambit of
Section 2(a) of the Employment Equality Act of 1977, in that by
reason of his sex he was treated less favourably than a female.
While the Court was made aware of the details relating to the
'requirement', it accepted that the issue of whether it was, or
was not, a valid requirement under the Act was not before it for
adjudication.
The issue for the Court was whether the worker was treated
differently from other employees so that he suffered
discrimination, and had no alternatives but to leave the
employment.
It was apparent to the Court that there was a "stand-off" between
the parties in relation to the requirement. On this point, the
Court notes that the claimant initially stated that he was told to
comply with the requirement, or 'he would not be allowed to clock
in on Monday". During the hearing however, he submitted that he
had been informed that if he did not comply with the requirement,
the Company would "commence to operate the disciplinary
procedure", a procedure which culminates in dismissal. In his
opinion, either one of the Company's instructions could only be
interpreted as a decision to dismiss him. The Company, while
accepting that the instruction 'not to clock in' had been issued,
denied that any reference had been made to the operating of the
disciplinary procedures.
The foregoing, and all other relevant points put forward by the
parties, were considered by the Court. It does not appear to it,
however, that a claim of 'constructive dismissal' can be
sustained.
This conclusion is based on a number of points:
(1) When the claimant was initially requested to comply with the
'requirement', two immediate options were available to him:
(a) to comply with the 'requirement', or, having considered that
it was unreasonable having regard to the terms of the
Employment Equality Act of 1977,
(b) to initiate a complaint under that Act.
However, rather than exercising either of the above options, the
claimant chose a third option by deciding to terminate his
employment on the grounds of constructive dismissal.
Since the claimant had decided to exercise the third option, the
Court considered all the facts and events in relation to the
period of time between the first approach by management regarding
the requirement, and the date on which the employment was
terminated. Having done so, the Court cannot accept that the
actions of the employer could form a basis for a claim of
constructive dismissal.
The Court, accordingly, finds that the claim of constructive
dismissal and the claim for reinstatement must fail.
Division: Mr McGrath Mr Pierce Mr Walsh
Text of Document__________________________________________________________________
EED951 ORDER NO. EEO295
EMPLOYMENT EQUALITY ACT, 1977
SECTION 26(1), 27
PARTIES:
DUNNES STORES, DUN LAOGHAIRE
(REPRESENTED BY MATHESON, ORMSBY, PRENTICE, SOLICITORS)
AND
A WORKER
(REPRESENTED BY MANDATE)
SUBJECT:
The dispute concerns the alleged unfair treatment of a worker
in contravention of Section 2(a), of the Employment Equality
Act, 1977.
BACKGROUND:
The worker was employed by the Company from August, 1988, to
October, 1994. His duties included;- checking in deliveries,
tidying the stockrooms and building units and some cleaning.
The worker claims that he was treated differently from other
employees of the store as a result of his sex. He was not
allowed to wear his hair in the fashion that he preferred and
was left with no alternative but to hand in his notice. The
worker claims that he would have been dismissed had he not
handed in his notice. The Company denies that the worker was
subject to discrimination contrary to the provision of the
Act, either in the conditions of his employment or the
termination of same. The dispute was referred to the Labour
Court on 23rd January, 1995. The Court investigated the
dispute on 21st July, 1995. Both parties made oral and
written submissions to the Court. In its oral submission,
the Union claims that on 16th September, 1994, at a meeting
with the Store Manager, the worker was warned that the
necessary measures would be taken to dismiss him if he did
not get his hair cut. The dismissal would follow a first
verbal warning, a second verbal warning and suspension. In
its oral submission, the Company denies that the Store
Manager warned the worker on 16th September, 1994, that he
would be dismissed.
ORDER:
The issue before the Court was a claim by the worker that he was
'constructively dismissed' because of his failure to comply with a
requirement, which, he considered, came within the ambit of
Section 2(a) of the Employment Equality Act of 1977, in that by
reason of his sex he was treated less favourably than a female.
While the Court was made aware of the details relating to the
'requirement', it accepted that the issue of whether it was, or
was not, a valid requirement under the Act was not before it for
adjudication.
The issue for the Court was whether the worker was treated
differently from other employees so that he suffered
discrimination, and had no alternatives but to leave the
employment.
It was apparent to the Court that there was a "stand-off" between
the parties in relation to the requirement. On this point, the
Court notes that the claimant initially stated that he was told to
comply with the requirement, or 'he would not be allowed to clock
in on Monday". During the hearing however, he submitted that he
had been informed that if he did not comply with the requirement,
the Company would "commence to operate the disciplinary
procedure", a procedure which culminates in dismissal. In his
opinion, either one of the Company's instructions could only be
interpreted as a decision to dismiss him. The Company, while
accepting that the instruction 'not to clock in' had been issued,
denied that any reference had been made to the operating of the
disciplinary procedures.
The foregoing, and all other relevant points put forward by the
parties, were considered by the Court. It does not appear to it,
however, that a claim of 'constructive dismissal' can be
sustained.
This conclusion is based on a number of points:
(1) When the claimant was initially requested to comply with the
'requirement', two immediate options were available to him:
(a) to comply with the 'requirement', or, having considered that
it was unreasonable having regard to the terms of the
Employment Equality Act of 1977,
(b) to initiate a complaint under that Act.
However, rather than exercising either of the above options, the
claimant chose a third option by deciding to terminate his
employment on the grounds of constructive dismissal.
Since the claimant had decided to exercise the third option, the
Court considered all the facts and events in relation to the
period of time between the first approach by management regarding
the requirement, and the date on which the employment was
terminated. Having done so, the Court cannot accept that the
actions of the employer could form a basis for a claim of
constructive dismissal.
The Court, accordingly, finds that the claim of constructive
dismissal and the claim for reinstatement must fail.
~
Signed on behalf of the Labour Court
8th November, 1995 Tom McGrath
C.O.N./A.K. ---------------
Deputy Chairman