UDD164

The claim is taken under the Unfair Dismissals Act 1977-2015 (the Act)

In this Determination Ms Karavajeva is referred to as the Complainant and Martin Quigley (Nenagh) Limited is referred to as the Respondent.

Background

The Rights Commissioner found that the Complainant was not unfairly dismissed.

The Complainant was employed by the Respondent from 2^ndFebruary 2011 until 2^ndNovember 2014. The Complainant, by letter dated 4^thOctober 2014, stated her intention to resign from her employment and subsequently ceased her employment on 19^thOctober 2014. Taking account of outstanding leave entitlements the employment terminated on 2^ndNovember 2014.

The Complainant contended to the Court that she was constructively dismissed from the employment due to the ‘intolerable and unacceptable behaviour’ of the Respondent.

Position of the Parties

The Complainant

The Complainant commenced a period of Maternity Leave on 5^thSeptember 2011 which concluded on 1^stJuly 2012. The Complainant asserted to the Court that prior to her return to work in 2012 she met with a supervisor who advised her that her working hours would be reduced on her return to work. The Complainant also asserted to the Court that her supervisor had stated at a meeting that ‘workers with small children are better at home’. The Complainant raised a Grievance with the respondent in accordance with the Respondent’s procedures at stage 2 as a result of this meeting. The raising of that Grievance resulted in a meeting with a manager of the Respondent on 11^thJune 2012.

The Complainant returned to work in July 2012 on reduced working hours as compared with the level of hours available to her prior to her maternity leave.

The Complainant commenced a further period of maternity leave on 11^thFebruary 2013 which ended in February 2014. Prior to her return to work she met with a manager of the Respondent on 8^thJanuary 2014 in order to discuss her return to work. The Complainant asserted to the Court that she was advised at this meeting that her working hours would be further reduced on her return.

The Complainant contended to the Court that she worked a reduced number of hours following her return to work and that the employer’s assignment of hours to her was such as to disqualify her from receipt of certain payments from the Department of Social and family Affairs for 10 weeks during the period between her return and the termination of her employment in November 2014.

The Complainant asserted to the Court that she had raised concerns about the number of hours of work available to her in the period following her return to work in February 2014. The Complainant contended to the Court that ultimately the level of work made available to her in the period following her return taken together with what she stated to be a manipulation of her hours so as to lessen her entitlement to payments from Department of Social and Family Affairs were such as to mean that she could no longer continue in her employment.

The Complainant accepted that the terms of her letter of resignation addressed to the respondent were such as to create the impression that the reasons for the resignation were other than those set out in her complaint. She advised the Court that her letter of resignation was reflective of her mental anguish at the time and her understanding of the value of a ‘good reference’ from the Respondent.

The Respondent

The Respondent contended to the Court that trading conditions during the Complainant’s first period of maternity leave were such that the overall level of hours worked in the shop dropped while the Complainant was availing of that leave. The Respondent contended that there had been no disproportionate impact upon the Complainant in terms of availability of working hours on her return and that all staff of the Respondent had experienced similar reductions in hours.

The Respondent stated to the Court that the complainant had, in 2012, raised a grievance through the procedures of the Respondent as regards her hours and as regards remarks allegedly made by her supervisor in a meeting prior to her return to work. The Respondent asserted to the Court that this grievance was disposed of at a meeting between a manager of the Respondent and the Claimant on 11^thJune 2012.

The Respondent asserted that trading conditions in the store continued to be difficult throughout the Complainant’s second period of maternity leave. The Respondent asserted to the Court that a manager of the Respondent met with the Complainant prior to her return to work after her second period of maternity leave. That meeting took place on 8^thJanuary 2014. The Respondent made signed minutes of that meeting available to the Court. Those minutes were not disputed by the Claimant. The Respondent asserted to the Court that at that meeting the Complainant confirmed that she would be available to work only two to three days per week. The Respondent asserted to the Court that the Complainant’s lack of availability to work across five days per week as had been her previous practice was, taken together with the reduced level of working hours in the shop generally as a result of trading conditions, the key reason for the level of reduction of working hours available to the Complainant upon her return to work.

The Respondent stated to the Court that in the period between her return to work and her resignation no grievance through the procedure of the Respondent was raised by the complainant as regards any concerns that she had as regards her working hours or at all. The Respondent stated that the Complainant was familiar with the grievance procedure having utilised that procedure in 2012. The Respondent stated that the Complainant, in her letter of resignation, gave no indication of unhappiness and in fact framed her letter in very positive terms.

Discussion

The Act at section 1 in relevant part provides as follows

1.—In this Act—

• “dismissal”, in relation to an employee, means—
  • (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

    (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

It is common case that the Complainant met with a manager of the Respondent on 8^thJanuary 2014 prior to her return to work. The Respondent has provided the Court with minutes of that meeting which were signed by the Complainant and the manager of the Respondent. The Complainant in evidence to the Court confirmed that the minutes were read aloud to her before she signed them at the conclusion of the meeting on 8^thJanuary 2014. Those minutes record that the Complainant advised the respondent that she would return to work for two to three days per week. Those minutes also record that the Respondent advised the Complainant that on the two or three days per week that the Complainant would work that there would not be eight hours work available on the day. The Complainant is recorded as confirming her awareness of that position.

The Complainant returned to work following this meeting and did not raise any matter through the Respondent’s grievance procedure between that date and the date of her resignation from the Respondent’s employment. It is common case that the Complainant had raised a grievance through that procedure in 2012 and the Court is satisfied that the Complainant was familiar with the grievance procedure.

The Complainant laid significant emphasis on the relationship between her working hours and her entitlement to claim certain payments from the Department of Social and Family affairs during the period after her return to work in or about end of January 2014 / beginning of February 2014. The Complainant states that she lost her Social Welfare entitlement in ten of the weeks in the period between January / February and November 2014. The Respondent states that while generally aware of the Complainant’s interaction with the Department of Social and Family Affairs it had no policy of allocating work in a manner designed to maximise benefits available to employees from the Department of Social and family Affairs. A manager of the Respondent stated in evidence to the Court that its policy was to make work available as it occurred rather than to accommodate claims on the Department of Social and family Affairs.

Conclusions

The Court in this case is asked to consider the conduct of the employer to be so unreasonable as to leave the Complainant no alternative but to terminate her employment. The Court notes that the Complainant met with the Respondent prior to her return to work in January 2014 and confirmed her availability to work on only two to three days per week. The Court notes also that the Complainant did not avail of the Respondent’s grievance procedure to raise any issue as regards her working hours in the period between January / February 2014 and her resignation in November 2014.

The Court accepts that the Complainant was familiar with the Grievance Procedure of the Respondent and considers that she had, in the period between January / February 2014 and November 2014, opportunity to raise any concerns she may have had as regards her hours of work through those procedures.

Moreover, the Court accepts the evidence of the Respondent that no practice of allocating hours to accommodate claims on the Department of Social and Family Affairs was in practice in the employment of the Respondent.

The Court does not find that the conduct of the Respondent in this case was such as to leave the Complainant no alternative but to terminate her employment. The Court further finds that the Complainant’s failure to utilise the grievance procedure of the Respondent means that she failed to take all reasonable steps available to her prior to terminating her employment.

For the foregoing reasons the Court is satisfied that the conclusions reached by the Rights Commissioner are correct and that his Recommendation ought to be affirmed.

The appeal is disallowed and the Recommendation of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
11 April 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.