ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002935

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00004043-001	25/04/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00004043-002	25/04/2016

Date of Adjudication Hearing: 07/09/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant returned to work on the 2nd of March 2016 following a period of stress leave as a result of being the victim of a vicious assault and robbery in January 2016. Upon her return she found that her working conditions had changed dramatically. The number of hours that she was rostered to work for had been significantly reduced. It had been part of the complainant’s role to open and close the shop on a regular basis. On her second day back at work the respondent informed the complainant that the most junior member of staff would be taking over her duties as part of training, further impacting on her hours and her eligibility to her bonus. The complainant was also removed as the administrator of the shop's Facebook page a role which she carried out since its inception. On Friday the 4th of March 2016 the respondent requested that the complainant return the shop keys. The complainant carried out all the roles and duties of an assistant manager and de facto was the assistant manager prior to the assault. When she returned her role was diminished beyond recognition, all with any notice, warning or reason.

Before the assault the complainant had bought two lotto tickets, one for the shop and the other for herself. On Monday she checked her own ticket and won €28 euro on it. The complainant cashed it at a newsagents. The other ticket went missing from the shop counter and has not been found. The complainant feels that she is being wrongly accused for taking the ticket and seems to be the only person being investigated in relation to it. Since the complainant returned to work she has felt excluded and that there was tension between her and the other staff. On the 4th of March the respondent told the complainant that he had received a complaint that she had called a customer too early in the morning. The respondent then told her that her position was under review. On Monday the 7th the respondent told the complainant that he had received a complaint that she had sold a customer the wrong width shoe and that this was the 3rd complaint he had received about me. The complainant believes that the respondent is building up to a verbal warning with these complaints as she had never received one in the previous 7 years working in the store.

Respondent’s Submission and Presentation:

On 21 January 2016 the respondent noticed that a lotto ticket belonging to the staff syndicate was missing and questioned all staff but they had no knowledge of its whereabouts. The National Lottery confirmed that the ticket had been cashed an, believing that a customer had taken it, the respondent reported the matter to the Gardai.

The next day the respondent was informed that the complainant had been the victim of an incident on her way to work. He was also advised that the complainant had cashed a lotto ticket that had won €28.00 and that it may accidentally have been the staff ticket.

The following Monday the complainant informed the respondent that she was unfit to return to work and that she was also worried about the lotto ticket. This was followed by a medical cert handed in by the complainant’s mother who told him that her daughter was suffering from stress and that this was due to the issue of the lotto ticket investigation.

On 15 February 2016 the complainant indicated that she was fit to return to work. The respondent advised her that he would need to look at the rota prior to confirming her working hours and that he wished to interview her in relation to the lotto ticket. This interview took place the following day during which the complainant offered to repay the €28.00. On legal advice the respondent decided not to take this matter any further.

The respondent informed the complainant that she could return to work the following week but that her hours were reduced due to the fact that hours had already been allocated to other staff. The complainant resumed working on 2 March 2016 and on the next day the respondent explained that she was on reduced hours both that week and the following week as rotas had already been completed but that she would revert to full hours after that. He also advised that some of the complainant’s minor duties had been reallocated but that this would be reviewed.

On 10 March 2016 the respondent was told by the complainant’s mother that she was ill and sick certs were received subsequent to that. Any customer complaints were of a routine nature and the respondent would normally discuss these with the staff member concerned. The complainant was not the Assistant Manager and any change to her non-sales duties would not impact on her earnings. The bonus is directly related to sales.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13(3) of the Industrial Relations Ac, 1969, requires that I make a recommendation to the parties in relation to the dispute.

Issues for Decision:

Did the respondent’s actions constitute a breach of the provisions of the Terms of Employment (Information) Act, 1994.

Legislation involved and requirements of legislation:

Section 5(1) of the Terms of Employment (Information) Act, 1994, states:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

1 month after the change takes effect, or
where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employees departure.

Decision / Recommendation:

The complainant was employed as a sales assistant in a shoe store owned and operated under a franchise agreement by the respondent. She commenced employment in December 2009. On 10 March 2016 the complainant went absent on sick leave and did not subsequently resume employment. On 25 April 2016 the complainant filed her complaint with the WRC. Her employment was full time and she was paid €450.00 per week gross. The complainant has since taken up new employment.

Complaint No. CA-00004043-001:

The complainant states that she was not notified in writing of changes to her terms of employment. Some of the issues raised at the hearing relate to duties such as keyholding and Facebook administration responsibilities which do not form part of the statement of employment. What is clear is that the respondent did reduce the hours of work of the complainant upon her return to work from illness on 2 March 2016. The complainant normally worked 9.00 to 17.30 over 5 days and was instead rostered to work from 11.00 to 16.00 over 4 days. The respondent stated that this was a temporary arrangement and resulted from other staff being already allocated extra hours. However, the claimant had advised on 15 February of her intention of returning to work. The respondent also said that he wanted to ease the complainant back into work but, if this was the case, it should have been the subject of discussion and agreement between the parties. No notice was given regarding this change in working hours. I therefore find that this complaint is well founded and I order the respondent to pay the complainant compensation in the amount of €750.00 in this regard.

Complaint No. CA-00004043-002:

This is a complaint alleging constructive dismissal brought under the Industrial Relations Act, 1969. The complainant cites the reduction in working hours, the change in duties, the investigation conducted by the respondent into the missing lotto ticket and the raising of customer complaints as issues which combined to leave her with no choice but to leave her employment.

The evidence indicates that the complainant was present in work on 6 days in March 2016 and that the respondent was not in the store for 3 of those days. The respondent gave evidence that during the time he was present he told the complainant that her hours would be restored in the next rota. With regard to the investigation into the missing lotto ticket it is clear that the respondent, for whatever reason, chose to expend a lot of time and resources into the matter. In particular he convened a meeting with the complainant on 16 February 2016 whilst she was still on sick leave. The complainant, however, appears to have contributed to the confusion as she stated that she was unsure whether or not she had mistakenly taken the staff lotto ticket.

The underlying principle justifying constructive dismissal is that the actions of the employer were such as to leave the employee with no reasonable alternative but to resign. Prior to resignation it is expected that the employee attempts to resolve the matters in dispute with their employer. The Employment Appeals Tribunal in Case No. UD1775/2010 stated:

“Except in very limited situations an employee must exhaust all avenues for dealing with his / her grievances before resigning.”

The respondent has a policy dealing with the issues of bullying / harassment but I have not seen sight of a grievance procedure. Whilst the complainant was obviously unhappy with what had occurred there was no evidence that she had specifically raised these issues with the respondent prior to going on sick leave on 10 March 2016 nor did there appear to be any communication after that date regarding these matters other than sick certs.

In these circumstances I cannot recommend in favour of the complainant’s claim for constructive dismissal. I note that the issue of the lotto ticket is now closed and that the respondent has stated that he would have no hesitation in recommending the complainant to a future employer.

Dated: 18^th November 2016