ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000684
Complaint for Resolution:
|
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00000100-001 |
6th October 2015 |
Date of Adjudication Hearing: 17th February 2016
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 6th October 2015, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was scheduled for adjudication on the 17th February 2016. The complainant was employed as manager of a retail outlet and the respondent is a chain of retail outlets, specialising in products from Eastern Europe.
In accordance with section 8(1B) of the Unfair Dismissals Act, 1977, as inserted by the Workplace Relations Act, 2015, and 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. An interpreter attended the Hearing to facilitate the complainant giving evidence.
Complainant’s submission and presentation:
The complainant commenced employment with the respondent in 2006 and she worked her way up to become a manager of a city centre store. This store is a part of a network of stores operated by the respondent, specialising in products from a region of Eastern Europe. The complainant continued in the role of manager until the end of her employment on the 24th June 2015. The complainant asserts that she was constructively dismissed by the respondent, and she presented her case first at the adjudication. In the complaint form, the complainant states that her role has not been replaced in the store and that she was dismissed by the respondent in this manner in order to avoid paying a redundancy lump sum payment.
The complainant outlines that in her role as store manager, she generated rosters for staff and also prepared sales reports. She organised the discounting of product and was responsible for a money transfer franchise operated in the store. No disciplinary issues had arisen during the course of her employment with the respondent. The shop was open every day, opening at 10am and closing at 6, 7 or 8pm, depending on the day of the week. The complainant said that she worked on Mondays as she did the accounts on this day.
In respect of the events of Monday 22nd June 2015, the complainant said that she was contacted by the regional manager, who informed her that she should take the day off as she had worked up her hours. The complainant replied that she had to work that day, but the regional manager said that the shop would cope in her absence. The regional manager also raised the issue of rosters, asking “do you know you have made a huge mistake” and saying that the complainant would have to explain the roster issue the next day.
The complainant outlined that, as store manager, she introduced a practice where staff working over 39 hours in any week could take hours off in subsequent weeks. This arrangement had been suggested to her by the regional manager. There had been a limit of 45 hours per week for a staff member to be rostered, but this had been reduced to 39 hours three year’s previously.
In respect of Tuesday, 23rd June 2015, the complainant outlined that she attended work at 9.30am and met the regional manager and the company director at 11am. This meeting took place in the staff room at the back of the store. The regional manager asked the complainant whether she had prepared a written explanation to account for discrepancies in the rosters. The regional manager said that she had seen on the shop CCTV that staff rostered as having worked particular hours were not present in the store during these hours. The complainant replied that she allowed staff to leave work early to fulfil hours that they had carried over from earlier weeks. She was not sure how loud their voices were, but she said that she felt under pressure from the regional manager and the company director. She was told that she had to write down an explanation for the work hours practice. They told her that the time sheets were incorrect, and she would have to explain this. The complainant acknowledged that a store colleague was present in the store, but because this meeting took place in the staff room, the colleague could not have heard their voices. The complainant said that she did not shout in this meeting. This interaction lasted for one hour and the complainant asked to go home afterwards. The company director asked her to remain and the complainant worked until 7pm.
The complainant outlined that she attended a meeting at the respondent headquarters at 10am on Wednesday, 24th June 2015. The complainant said that she had received written notification of the meeting, but not supplied with the disciplinary procedure and there is no reference in the letter to suspension or investigation. She met with the regional manager and the company director. She accepted that she had been told that she could bring a colleague, but was not clear what this colleague’s role would be. At the meeting, the complainant outlined how she allocated work hours to staff in the store. The regional manager and company director replied that hours could not be carried over and she could also not roster and pay staff when they are not in the store. They threatened that this was an issue of gross misconduct and that it would be hard for the complainant to find other employment if she was dismissed by the respondent on these grounds. During the course of the meeting, the parties were joined by the senior finance manager, who asked what was happening. The senior finance manager said that the complainant was a good worker and would be able to explain the situation. The complainant said that the reference to the word “fraud” was used by the respondent to refer to the documents she submitted to explain the carryover of hours. It was put to the complainant that she should resign and she was asked to sign a letter of resignation.
The complainant said that it had been the company director who had first made reference to her resigning. This occurred at the meeting of the 23rd June 2015. At the meeting on the 24th June 2015, the company director had said that complainant would be dismissed if she did not resign, and the complainant feared that she would not get another job without a reference from the respondent. The meeting on the 24th June 2015 commenced at 10am and finished at 1.30pm. She had been alone at two points in the meeting, the first time was a period of 10 minutes after the first hour of the meeting was over. After this first break, the company director, the regional manager and the senior finance manager were present at the meeting. She was later alone left with the senior finance manager. In this time, the complainant said that she had suggested to the respondent that she be demoted as sanction for the roster issue. The respondent representatives had replied that they had lost trust in the complainant. She said that she remained in the upstairs meeting room for the entire time and was not offered any food. The complainant said that she drafted the letter of resignation and gave it to the company director. No-one had asked her to reconsider. She received her P45 two days later and this had been issued on the 24th June 2015.
The complainant outlined that since the end of her employment with the respondent, she had sought alternative employment. She had applied for 100 or so jobs as a store assistant or a store manager. She had sought alternative roles across many locations. She said that she had liked her job and that she has incurred significant emotional impact following her dismissal. The respondent had never said that the two meetings were disciplinary meetings and that she had never seen the CCTV consent form exhibited by the respondent.
In cross-examination, the complainant accepted that she had worked for the respondent for nine years and said that she was good at her job. She had had a good relationship with the management team. The company director frequently visited the store and the regional manager less so. She said that an incident occurred on the 4th February 2015 had been resolved satisfactorily. It was put to the complainant that there was a conflict between her written submission, which refers to “screaming” and her reference at the adjudication to “not shouting” with regard to the meeting of the 23rd June 2015. She replied that the regional manager had raised her voice during this meeting. It was put to the complainant that she had not asked for a representative to accompany her at the meeting of 24th June 2015, she replied that she did not know she could have brought a representative. The complainant acknowledged that the respondent said that she could bring one of two colleagues to the meeting. She asked why she needed to bring someone and did not ask what the purpose of this meeting was. She said that she had told her colleagues on Tuesday morning that she had been accused of fraud. She also outlined that she did not know how to activate the grievance procedure. It was put to the complainant that it was difficult for her to answer the questions; she replied that it was not difficult because of the questions, but it was difficult because of the pressure. It was put to the complainant that the meeting on the 23rd June 2015 lasted less than an hour; she agreed with this. It was put to her that the meeting on the following day lasted an hour; she disagreed and said that it lasted 3.5 hours. It was put to the complainant that she left her role of 9.5 years just as a result of two meetings; she replied that she did so because she was humiliated. The complainant was asked why she had not complained; she replied that she left because there were no other options open to her. It was put to her that she resigned over her mistakes; she replied that she was not sure if there were mistakes and that she had resigned because of the pressure exerted over three hours of meeting and the threats to her future employment. The complainant was asked whether the company director had acted out of character; the complainant replied that the company director had spoken in a normal tone, but it was what she said. It was put to the complainant that her address is written on the letter of resignation, the complainant said that the senior finance manager had suggested that she write down the address.
In re-examination, the complainant acknowledged that she had not worked on three Mondays in 2015. She said that she had not received her contract of employment in her native language and was never explained its terms. She had sought to understand its contents by translating it. She was also not provided with a staff handbook. She had had no previous complaints about her work and was not aware of any grievance procedure. She had not expected that the meeting of the 24th June 2015 was going to be so stressful. She said that she had met the managing director on many occasions.
In closing submissions, the complainant outlined that it relied on the “reasonableness” test for this claim of constructive dismissal. The complainant had not referred a grievance as this would have gone to the managing director, the husband of the company director. She had never had cause to look into the grievance procedure before. She relied on Porter v Atlantic Homecare Ltd [2008] 19 E.L.R. 95 as authority that not availing of a grievance procedure was not fatal to a claim of constructive dismissal. Relying on Byrne v Furniture Link International Ltd [2008] 19 E.L.R. 229, the burden was on the respondent to invoke the disciplinary procedure in such a case. The issue of the hours worked was introduced by the respondent to muddy the waters; the complainant had been told to resign. The complainant had suggested other disciplinary outcomes. Furthermore, she relied on May v Moog Ltd [2002] 13 E.L.R. 261 which established that the onus was on the employer to seek reasons for what the employee did. The complainant outlined that her job was everything to her and that she had found it very difficult to find alternative employment because of her limited English and the lack of family support in Ireland. It was also suggested that she had been dismissed because of fraud.
Respondent’s submission and presentation:
The respondent denies the claim and asserts that the complainant resigned during the process of the respondent looking into inaccuracies in the records maintained by the complainant as manager of a shop. It denies that the complainant was subject to a disciplinary process or that she was constructively dismissed, applying both the “contract” and “reasonableness” legal tests.
The company director gave evidence. She said that she was a director of the respondent company and her husband is the managing director. The respondent has 16 shops and she visits the shops in order to plan promotions and manage stock. She said that two or three years ago, the respondent had reduced the working week to 39 hours and that it paid employees for these hours and any hours worked above this amount. In relation to the complainant, the company director said that she was a good manager. There had been an incident in February 2015 over the consumption of tea on the shop floor, but this had been resolved informally.
In respect of the meeting of the 23rd June 2015, the company director said that the regional manager had identified differences in the hours stated as worked. They met with the complainant and she described the meeting as a “usual” meeting. They asked the complainant to explain the rosters, but she refused to do so. The complainant had said that she was not ready to talk today and they gave her a break. The complainant suggested meeting in the respondent headquarters the next day and the regional manager suggested that she put down her explanation in writing. The company director said that she never used the word “fraud” and also did not say that the complainant had lost her trust. The meeting of the 23rd June lasted about an hour and it ended after they arranged, at the complainant’s suggestion, to meet the following day in headquarters.
The company director said that neither the meetings of the 23rd or 24th June 2015 were disciplinary meetings. It was open for all employees to bring a colleague with them to any meeting with management. The meeting on the 24th June was to find out why the rosters were wrong and to investigate. The company director outlined that this matter arose on the 19th June 2015 when a named member of staff was not present in the store, as identified on CCTV, but appeared on the corresponding time sheet. The meeting started at 10am and the complainant submitted her documentation. This was not satisfactory and did not explain the mistake. The complainant was offered to take a break and offered water. The senior finance manager was asked to attend as she deals with human resources. During the meeting, the complainant was informed that she could go home or to take another break. The complainant was by then sitting in silence and the company director said that she believed the complainant had decided to resign. She said that she was shocked to receive the letter of resignation. There had been no raised voices at the meeting and she said that the complainant had met the managing director on the stairs afterwards, when she was upset. The company director did not agree that the complainant had accepted a lower disciplinary sanction or suggested her demotion.
In cross-examination, the company director outlined that the 19th June 2015 was the first occasion she was aware that the complainant was operating a carryover policy. She said that when you trust an employee, you do not look behind the rosters they submit. In respect of the meeting of the 24th June 2015, there had been two 15 minute breaks and the meeting did not last 3.5 hours. The purpose of the meeting was to discuss the mistakes made by the complainant in the roster. Asked whether she had referred to the meeting as an investigation, the company director said she had called the meeting an investigation and it was an attempt to explore the facts. She said that prior to the meeting, she had spoken with the store worker present at the hearing to discuss over claimed hours. The complainant had refused to explain hours and rosters at the meeting of the 23rd June 2015. Her tone had not been nice and there had been one 15-minute break during the meeting. The company director said that in the meeting of the 24th June 2015, she was looking for answers. She said that the complainant knew the managing director well and could have gone to him with any grievance. It was also usual for colleagues to attend meetings involving staff and management outside of any disciplinary meeting. It was put to the company director that the comments attributed to the complainant in the minutes of the 24th June meeting of the complainant not completing the rosters in the same way “again” and to her “future” with the respondent suggest that the complainant did not intend to resign. The company director did not accept this inference and said that, maybe, the complainant felt guilty. She had thought that the complainant might later withdraw the resignation and said that she was not asked to reconsider. The complainant was supplied with a reference at a later stage.
The regional manager gave evidence. She outlined that she called to the shop on the 19th June 2015 to speak with a named staff member about her annual leave. She found that this staff member was not in the shop despite being rostered. She confirmed this on the shop CCTV. She denied that she asked the manager to go home on Monday, 22nd June. She said that she may have phoned the complainant to check that she would be in work on Tuesday, 23rd June. She said that at the meeting on the 23rd June, she was looking for answers as to why the named staff member was not at work. It was her responsibility to check rosters and she wanted an explanation for the staff member’s absence. There were no raised voices at this meeting and no reference or accusation was made to fraud. She denied that the company director had said that there was a loss of trust in the complainant. It was the complainant who suggested checking papers and to meet again the following day. She did not accept that the handwritten note dated the 23rd June is an invitation to a disciplinary meeting.
At the meeting of the 24th June 2015, the complainant was asked to explain the hours and rosters; she supplied two pages of information. The regional manager said that she had with her a year of time sheets and wanted to compare this information with the hours actually worked. She was able to do a comparison with when staff members had entered their code on the point-of-sale register to when they were rostered, but not present, at work. The regional manager said that she was able to identify other occasions where staff were not present in the workplace despite appearing on the timesheet. She outlined that the complainant was silent and quiet during the meeting. The first part of the meeting was about looking for answers and there was no reference to the complainant’s future. The senior finance manager then joined the meeting and the complainant sought again to explain her statement. The meeting broke up and the complainant was offered tea or water. The regional manager then left the room. The complainant accepted that she had made mistakes and when the meeting resumed, she had written the letter of resignation. The regional manager said that she was shocked by this. The senior finance manager asked where the P45 should be sent to. The complainant then asked if she could leave. The meeting lasted at total of one or two hours and the resignation itself was quick. The complainant had been silent through the meeting and appeared lost. There was no discussion of alternatives to dismissal as claimed by the complainant.
In cross-examination, the regional manager accepted that the complainant was a good worker, but said that managers can make mistakes. She said that she had previously worked in a shop and was not aware of the carryover policy implemented by the complainant. It was her role to ensure that time rosters across the respondent and while the other 15 stores consulted with her over hours, the complainant did not do so. She said that the complainant’s resignation had been quick and unexpected. The complainant had been asked to provide a written explanation of the misunderstanding and this was why she had a piece of paper with her. As she had said she made a mistake, she was expected to acknowledge this in writing. There was also always paper and pens in the meeting room. The regional manager said that she had expected the complainant to call afterwards to say that she had changed her mind. In re-examination, the regional manager outlined that she maintained two rosters: one charting planned hours and a second recording the hours actually worked by staff.
The senior finance manager gave evidence. She outlined that she managed the finances for the respondent and was also responsible for human resources. She said that she had been asked by the company director and regional manager to attend the meeting as they could not understand the explanations given by the complainant. The senior finance manager said that the respondent paid for all hours worked and that the respondent prepared rosters of planned hours and then rosters of the hours actually worked. The planned rosters gave staff early notice of their schedules. It was illegal to permit the carrying over the hours and she had never heard of this practice in her 10 years in the company. There were 100 or so employees in the company and they completed time sheets, which were checked against rosters. The complainant was efficient in returning her time sheets.
The senior finance manager said that she was involved in the meeting of the 24th June 2015 for about 20 minutes. She greeted the complainant and asked her to explain the time sheets. She was not aware of the detail of the issues raised and the complainant outlined that these hours were carried over hours. The senior finance manager replied that “we were in a system and you cannot make up the rules”. The complainant said that she understood this. The regional manager then asked about the named staff member and the complainant answered that this staff member would work an additional shift on the 3rd July. The senior finance manager said that she could not see the logic of this and the complainant replied that not all answers were logical. She said that ‘we wanted the complainant to write down” that the respondent paid for all hours worked. The senior finance manager said that she was then 33 weeks pregnant and could not have done the things attributed to her by the complainant. She described the meeting as being friendly and that the questions asked were straightforward. The respondent needed clarification and for the complainant to acknowledge that all hours were paid for. The meeting stopped for a break and at this stage, she wanted the complainant to write to acknowledge that all hours were paid for. It was shocking when they returned to the room, the complainant had written the letter of resignation. The senior finance manager proceeded to upload the P45 on ROS and wrote a reference on the 25th June 2015. She said that it happened so quick and she did not think of asking the complainant to reconsider.
In cross-examination, the senior finance manager gave an outline of her professional and educational qualifications. She said that she had no specific HR training and that she relied on out-sourced HR support. In respect of the meeting of 24th June 2015, the senior finance manager said that the complainant was not confused. She answered some questions and did not answer others. She was aware that the complainant would be attending a meeting and did not know who had suggested it. It was the respondent policy that staff could bring a colleague or a family member to a meeting. She said that the complainant referred to other business interests at the time she left the respondent. She outlined that she had not calculated financial loss and that the purpose of the meeting on 24th June was to determine the number of hours carried over. The senior finance manager was asked why the need for the respondent to get written confirmation from the complainant. She replied that this was because the complainant had said that she was not getting paid for all hours. She referred to the practice within the respondent of recording issues arising on paper, giving an example of a red book to record customer complaints. She said that they asked the complainant to confirm that she had been paid for all hours and said that they had made enquiries with the other staff who worked in this shop. She outlined that she received a text message from the complainant the day after the resignation where the complainant asked for a reference.
The shop worker gave evidence and said that she worked in the shop managed by the complainant. In respect of the meeting of the 23rd June 2015, she was not aware why the company director and regional manager were in attendance. She did not hear any raised voices during the meeting, although it was clear that “everyone was not happy”. She spoke with the company director and regional manager afterwards. The complainant had said that she would have to correct the roster and provide the respondent with more information. She described the complainant as confused on June 23rd. On June 24th, the complainant had telephoned to say that she had resigned and that she was not coming back. She did not give a reason why. The complainant sounded upset.
In closing submissions, the respondent outlined that in a claim of constructive dismissal, the onus was on the employee to pursue a grievance with the employer prior to resigning. The evidence advanced by the witnesses was that the complainant was an excellent employee, that all hours worked had been paid for and that no suggestion had been made by or on behalf of the respondent that the complainant should resign. It had been open for the complainant to lodge a grievance after the events of the 24th June 2015 and the marital relationship between the company director and the managing director was not an issue. This was not a case of a fraught working relationship and the respondent was surprised when the complainant had resigned. There was no general issue of jobs being at risk of redundancy and the complainant was never told to resign her job. She was also never told that she had committed fraud. It had been unreasonable in these circumstances for her to resign. The respondent was entitled to ask questions about the roster issue and had done so in a benign way. This was not a way of avoiding paying a redundancy lump sum. The respondent had sought to find another manager for the store, but had not achieved this. The respondent relied on the test for constructive dismissal laid out in Daniel O’Gorman v Glen Tyre Company Ltd (UD2314/2010) and Freely v Fresenius Medical Care (UD758/2008) and Gary Keogh v JTM Jumpstarter Ltd (UD1090/2008). The complainant had not been asked to resign and she should have availed of the opportunity to refer a grievance to the respondent.
Findings and reasoning:
In spite of the longevity of the employment relationship in this case, the events leading to its end took place over three days, i.e. between the 22nd and 24th June 2015. The complainant asserts that she was constructively dismissed; the respondent asserts that the complainant resigned during the course of its examination of issues arising from staff rosters.
The claim is one of constructive dismissal, i.e. arising from the employee’s termination of her employment on foot, it is alleged, of the conduct of the employer. This form of dismissal is provided at section 1 of the Unfair Dismissals Act, in particular at subsection (b) of the definition of “dismissal”. This provides:
“dismissal, in relation to an employee means… (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.”
The complainant submitted a letter of resignation dated the 24th June 2015 and written in her native language. It states that the complainant wishes to terminate her employment as of the date of the letter. It refers to the complainant’s mistakes. The complainant asserts that she drafted the letter because of pressure exerted upon her by representatives of the respondent. This is denied by the respondent, which states that they were shocked by the complainant’s decision to resign.
In respect of the legal test for constructive dismissal, the Employment Appeals Tribunal in An Employee v An Employer (UD1421/2008), opened by the respondent, held:
“In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”
The respondent further relies on Freely v Fresenius Medical Care, where the Tribunal held that the claimant had acted hastily in resigning and the cases of O’Gorman v Glen Tyre Company Ltd and Gary Keogh v JTM Jumpstarter Ltd, where the respective Tribunals held that it was crucial that employee inform employer fully of their grievance. The respondent asserts that the failure of the complainant to lodge a grievance is fatal to her claim, relying on the authorities opened at the adjudication, including those above.
The complainant denies that it is necessarily fatal to a claim of constructive dismissal if an employee has not formally lodged a grievance. She also states that a positive duty on an employer to look behind a resignation in circumstances such as this. She relies on Mr O v An Employer (no. 2), where the Labour Court held:
“The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address what ever grievance they may have. However there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal.”
In Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331, the Employment Appeals Tribunal held at page 333 as follows:
“The Tribunal must consider whether because of the employer’s conduct the claimant was entitled to terminate his contract or it was reasonable for him to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In the case of Brady v Newman UD330/1979, the Tribunal stated at pp 9-10:
“… an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave.”
There were sharp conflicts in evidence between the parties. There was conflict over the tenor of the discussions on Tuesday, 23rd June 2015; whether the word “fraud” had been used and whether the respondent had raised the issue of trust. There was a great deal of further conflict in evidence in relation to the events of the following day; the meeting in headquarters on Wednesday, 24th June. The complainant says the meeting lasted some 3.5 hours; the respondent says it lasted about an hour. The complainant says that she was told that she would be dismissed if she did not resign and this would undermine her chances of finding other work. The respondent strongly denied this, stating that it was a shock that the complainant had resigned and that the meeting was not part of a disciplinary process.
Having considered the written submissions of the parties and the evidence of the witnesses, tested on cross-examination, I find as fact that the complainant was constructively dismissed by the respondent in the manner described in her evidence. I make this finding for the following reasons. This matter commenced when the respondent uncovered a work practice whereby the complainant, as manager, allowed staff who worked in excess of 39 hours in one week to claim the excess hours in later weeks. This was raised by management with the complainant and she explained how she operated the work practice. She was asked to put this in writing, which she did. The respondent expressed its dissatisfaction with the complainant’s explanation and referred to it being able to establish an accurate account of hours worked via the point-of-sale register. This was addressed at the meeting of the 24th June. I am struck how the complainant had done as she was asked, i.e. to provide a written account of her actions. If this was unsatisfactory, the next step was for the respondent to advance the matter via a disciplinary process. Instead, the meeting kept going and the complainant was asked to give her explanation again to a third member of management. It is submitted that the meeting continued in order for the complainant to acknowledge in writing that all hours worked were paid for. Given that the complainant had provided the explanation asked of her and had not provided this written acknowledgement, what else was there to talk about? I cannot accept that this was the reason for the meeting continuing without conclusion and whilst not being held in the context of the disciplinary procedure. I also take account that this took place in the upstairs boardroom where two and then three members of management attended. The complainant was not represented and while she had been offered the right to be accompanied by certain members of headquarters staff, I agree with the complainant that there was no reason for her to agree to their presence where this was not a disciplinary meeting. I also note the respondent’s evidence that the complainant was quiet and silent during the meeting, and that she was upset after the meeting.
It is fact that the complainant did not lodge a grievance during these events or after it. There was contact between the parties over a reference. I apply the dicta of the Labour Court in Mr O v An Employer (no. 2) where it is for the employee to show that she acted reasonably. As in the Mr O case, I note that in this case the parties against whom the complainant raises this complaint are the senior members of management. I have regard to the reasoning in Byrne v Furniture Link International Ltd, where the Tribunal considered the reasonableness of the respondent’s behaviour. In this case, I note that the fact that what was, to all intents and purposes, a disciplinary matter was pursued without reference to the disciplinary procedure and the protections afforded to an employee therein. I also note the convening of the meeting that continued for some time without an obvious point of conclusion. I note that the complainant had done as she was asked, but the meeting continued regardless. On the basis of the above, I find that the complainant was told that she would be dismissed if she did not resign and that the “fraud” word was used to her. I find that pressure was exerted on the complainant to write the letter of resignation after the lengthy meeting of the 24th June, a meeting which had no obvious, alternative conclusion. She cannot be said to have acted hastily or that the respondent did not know she was unhappy.
Having reached the conclusion that the complainant was unfairly dismissed from her employment, the matter of redress arises. In the circumstances, re-instatement and re-engagement are not appropriate. The dismissal arose where the complainant felt that she had no other option but to resign because of pressure exerted by senior staff of the respondent. It does not appear prudent to order that the parties re-establish an employment relationship. The complainant gave evidence of her efforts to find alternative employment. She supplied job applications. As of the date of the adjudication, the complainant had not obtained alternative employment. I also take account of the duration of her employment and her performance in the role as manager. Furthermore, I find that it cannot be said that the complainant’s conduct contributed to her dismissal. This is so because a lack of a disciplinary finding, or even initiation of the disciplinary process, in relation to the work practice issue raised by the respondent. Section 7(2)(f) of the Unfair Dismissals Act has no application in this case. Taking the factors into account, I award the complainant €23,000 (approximately 11 months’ pay).
Decision:
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I decide that the respondent shall pay to the complainant the amount of €23,000 as redress in respect of this claim of unfair dismissal.
Dated: 29th July 2016