ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001734

Complaint for Resolution:

Date of Adjudication Hearing: 19th July 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act, 1977, 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.

The Complainant was submitting that she was unfairly dismissed by the Respondent and the Respondent was denying the complaint.   The Complainant was employed by the Respondent from 11^th January 2011 and her weekly rate of pay was €228.00c

Summary of Respondent’s Position:

The Respondent was rejecting the complaint and were denying that the Complainant had been unfairly dismissed by them.

The Respondent said that in May 2015 as part of an internal restructuring, they established that they needed to have a Retail Team Leader in all of their shops.   This was a new position with a different title.   The position was a full-time one, with a different pay scale, different reporting arrangements and emphasis and it would be in all of the Respondent’s retail outlets.

Due to the retail restructure, the retail team leader position was advertised internally as a fulltime position with a deadline of 25^th May 2015.

The Respondent said that the Complainant did not apply for the position and as a result the Respondent recruited externally and the position was filled on 13^th July 2016.

On 31^st July 2015, an email was sent to the Complainant outlining alternative employment, 3 days per week similar to her existing position.   She would work 2 days in a named location closer to her home and one day in her existing location.

On 20^th August 2015, formal terms and conditions were emailed to the Complainant with the suitable alternative employment, with the same working hours and pay rate.

On 7^th September 2015, a letter was sent to the Complainant (delivered by hand) asking her to accept or decline the offer of suitable alternative employment and she was advised of the consequences if she did not accept the alternative employment and was advised to seek advice with regard to the situation.

On 8^th September 2015, a letter was received from a named Solicitor (not her representative at the Hearing) on behalf of the Complainant, which sought an extension of the deadline for response.

In response to this a letter was sent to the Complainant on 9^th September 2015, extending the deadline to Friday 18^th September 2015 and expressing satisfaction that she had sought independent advice and they also sought that the Complainant engage directly with them.

On 16^th September 2015, the Respondent received another letter from the same Solicitor on the Complainant’s behalf and this letter stated that the Complainant may have a grievance in relation to her pay rate.

On the same date the Respondent sent the Complainant a response to the Solicitor’s Letter, asking her to reach her decision by Friday 18^th September 2015 at 5.00pm.

On the following day a further letter was received from the Solicitor on the Complainant’s behalf threatening legal action.

On 18^th September 2015, a letter was given to the Complainant by hand in response to the Solicitor’s Letter asking her to confirm her decision by 12 noon on Tuesday 22^nd September 2015 and a 3 month review of the Complainant’s pay rate was outlined in that letter.

On 22^nd September 2015, a further letter was received from the Solicitor on the Complainant’s behalf suggesting unfair treatment and bullying, dismissing the pay review and again threatening legal action.

On 25^th September 2015 a letter was sent to the Complainant by email and by hand in response to the Solicitor’s letter, inviting her to attend a grievance hearing in relation to her pay on Wednesday 30^th September 2015.

Following a meeting on 25^th September 2015 the matters verbally discussed were reconfirmed in an email received from the Complainant on 1^st October 2015 outlining specific grievances in relation to her wages and an appraisal that was not carried out in 2014.

On 2^nd October 2015, the Respondent confirmed by email to the Complainant the findings of the grievance that a fresh appraisal was to be carried and on the following day the Complainant confirmed receipt of these findings.

On 13^th October 2015, an appraisal was carried out with the Complainant scoring 45 out of 100 and 3 months pay review was noted.   The Complainant refused to sign the appraisal as she did not agree with its contents.   She stated she was marked down for not using a petty cash form, but that she was unaware of its existence.   The Respondent agreed not to mark her down on that point until it was established if she was aware of the existence of this form.

On 15^th October 2015, formal terms and conditions of suitable alternative employment were again emailed to the Complainant, with the same working hours and pay rate she was currently on and she was asked to accept this by Thursday 22^nd October 2015.

On 22^nd October 2015, a further email was sent by the Respondent to the Complainant reminding her of the deadline.   In her response by email, the Respondent stated she was not happy to sign this contract as she did not agree with the rate of pay.

On 2^nd November 2015, a letter was sent by the Respondent to the Complainant giving 2 weeks notice at which point her employment with the Respondent would cease.

On 4^th November 2015, emails were received by the Respondent from the Complainant; one stating that she did not decline the offer of alternative suitable employment; the second one introduced fresh grievances, she believed that she had been victimised and bullied.

On 9^th November 2015, the Respondent responded to these emails, confirming that the Complainant had declined the offer of suitable alternative employment.

The Respondent said that between 31^st July 2015 and 13^th November 2015, communications were sent to the Complainant from them outlining alternative employment being offered to her.   The alternative employment was for the same hours and 3 days she was then working and at the same rate of pay and on two of the days she would actually be working closer to home.

The Complainant did not accept the alternative employment as she did not “agree with the rate of pay”.   She was advised of the consequences if she did not accept the alternative employment and she was advised to seek independent advice.

The Respondent submitted that the offer made by them was fair and reasonable in all respects; that they behaved fairly and reasonably; that the Complainant was not unfairly dismissed by them and the complaint was not well founded and should be dismissed.

Summary of Complainant’s Case:

The Complainant said that she commenced employment with the Respondent on 11^th January 2011; she said she had no issues until March 2012, when she informed her Manager that she was pregnant.   The Complainant said she had difficulty with the Respondent in getting time off for scans and she was told there was no cover, even though dates were given in good time.   She contacted her Manager on a number of occasions in relation to attending at scans, but she did not receive any definite answers until a day or two before the scans were due and this caused stress to her.

The Complainant said that in June 2012, she returned from a week’s holidays and was told the chair she was using for work was taken away and would not be returned to her as it was only used for doing emails.

On 16^th March 2013, the Complainant emailed a named Director to inform her that she was availing of 16 weeks unpaid maternity leave returning to work on 6^th August and she was told that was fine.

In June 2013 the Complainant rang the same Director to inform her that she was again pregnant, that it was unplanned and that she would be returning to work in the first week in August for a couple of weeks if that was appropriate and was told this was no problem and a named person would be informed and would revert to her with the roster.   Numerous calls were made in July 2013 in relation to the roster but no answers were provided to the Complainant.

On 1^st August the roster was sent to the Complainant and it had her rosterd in an entirely different area; she spoke to the named person informing that she was entitled to go back to the position she was in prior to going on maternity leave; that she was 7 months pregnant and was unable to drive the extra distance.   The named person told her to say she would cover the days in the different area, but that her days would be reduced.   On 16^th August the roster was finally corrected and the Complainant received it at 5.45pm on the day before she was to return giving her no opportunity to organise her family life, which caused her stress and anxiety.

In February 2014 the Complainant emailed the Director in relation to her return to work on 14^th April 2014.   On 4^th April 2014, the Complainant sent an email seeking a copy of the roster.   She sent a further one on 7^th April 2014.   On 10^th April a copy of the roster was given to the Complainant, which again caused her difficulty in organising her family life.

In June 2014, a Performance Appraisal was carried out on the Complainant and she was informed that her sales had gone down back to the previous year.   When she informed that she was not present at that time it was still pointed out that sales were down.   The Complainant believed this was very unfair and she was told she could contact the Managing Director and talk to him.

In July 2014, the Complainant discovered that there were other employees in the same role as her performing the same work who were on a higher rate of pay, even though she was in the employment longer than a number of those employees.   She said that it also appears that the person covering her maternity leave also was on a higher rate of pay performing the same work.   She spoke with the Respondent about this, but she was told there would be no pay increase for her.   She discussed this with another member of management and was informed that a further appraisal would be carried out in 3 months time, i.e. October 2014; but that appraisal did not take place.

In May 2015, the Complainant sent an email to the Respondent requesting Monday, Thursday and Friday as her days off for a 3 week period as she was placing her children in a crèche and she wanted to make sure that they settled in okay.   She was emailed back stating this would be okay; but she did not get the days off and another person who applied later than her got them instead.

On 22^nd May the Retail Team Leader position was advertised.

In June 2015, the Complaint received an email from the Respondent asking if she could work 5 days in July as they were tight at work and she agreed to do this

In August 2015, the Complainant received an email from the Respondent stating that her job had become redundant.   She was asked to consider a new contract of employment of 3 days per week; 2 in shop and 1 in telesales.   As she was already doing telesales she could not understand why she would be receiving as new contract.   The contract was for a 6 month probationary period.   As the Complainant was already working in the Respondent for 4 years she was not happy with the probationary period, nor was she happy with her pay rate staying the same since she first started.   She spoke to the Respondent about this and she received a new contract of employment with the probationary period removed.

In August 2015, letters were hand delivered to the Complainant from the General Manager.   In one of these letters the Complainant was specifically told that if she did not sign the new terms and conditions she would be dismissing herself.   The Complainant obtained legal advice from a named Solicitor; but she was told by the Respondent that they did not deal with third parties.

On 22^nd August 2015, the Complainant emailed the Respondent requesting Monday 27^th September off for a MRI Scan.   She was told that she could not be guaranteed that day off.   On 27^th August 2015, the Complainant was emailed asking her how much time she would need for the MRI Scan as the Complainant was down for work and the Respondent could not guarantee anything.

In September 2015, the Complainant attended a meeting with the General Manager and she was told to put any grievances that she had in writing and give them to him.  On 1^st October 2015, the Complainant sent her grievances in writing to the General Manager and he issued his findings in that respect the following day 2^nd October 2015.   On 13^th October 2015, a new Performance Appraisal of the Complainant was carried out by the HR Manager and the new Team Leader.   At the Appraisal issues were raised about a Petty Cash Sheet and that the Complainant had never put this into effect.   The Complainant checked this out with other stores and found they had never dealt with this and this was brought to the attention of the HR Manager.   The Complainant was told that her performance would be reviewed again in 3 months, 13^th January 2016.

On 2^nd November 2015, the Complainant received a letter from the Respondent giving her 2 weeks notice.   The Complainant sent a letter to the Respondent on 4^th November 2015, stating that she had never refused to work and was treated unfairly.   She said that since the new Team Leader was appointed she carried out her work to the best of her ability.   The Complainant said that the roster in relation to work was done up until January 2016 and there was no issue on behalf of the refusing her employment.   The Complainant was not 100% happy to sign the contract as she had issues with the contract that were brought to the attention of the Respondent.

On 4^th November 2015, the Complainant sent a grievance to the Respondent regarding the way she had been treated since the new Team Leader commenced employment.   She said this involved timesheets being ripped up, a Petty Cash Form that never existed, refund receipts being taken and reappearing and the Complainant received no response to any of these emails.

On 9^th November the Complainant received an email from the Respondent stating that once again she had declined the new terms and conditions of employment.   The Complainant said this was not the case; she at all times loved her job and the customers with whom she had built up a relationship.   The Complainant said that she was quite specific in her letter of 4^th November 2015, addressed to the HR Department of the Respondent, that she had not declined the offer of alternative employment and at no stage did she indicate that she wished to leave her employment.

The Complainant said that essentially she was told by the Respondent to sign the new contract or she would have to leave her employment with them.

The Complainant said that she believes that the Respondent have not acted reasonably in all the circumstances, taking into account the fact that she was employed by the Respondent for more than 4 years.   She believes the Respondent acted unreasonably in all the circumstances and that she was unfairly dismissed by the Respondent.

The Complainant said that in all the circumstances she is of the view that the Respondent acted unreasonably, did not follow fair procedures, did not allow her to obtain independent advice, refused to deal with any third parties who she had sought advice from, which she believes she is entitled to.   The Complainant believes that she was not afforded natural justice and that the Respondent has not acted reasonably and she has been unfairly dismissed.

The Complainant gave evidence of her efforts to secure alternative employment and mitigate her losses

Findings and Decision:

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

Section 8 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 have carefully considered all the evidence and submissions made and I have concluded as follows.

Much of the submissions made on behalf of the Complainant have nothing to do with her dismissal and were not cited by either party in the lengthy process leading to her dismissal, including in the grievances raised by the Complainant towards the end of that process.   In addition many long predate that dismissal.   The submissions in relation to such matters as time off for scans in 2012, the removal of a chair from her place of work in 2012, the alleged failure to provide her with adequate notice of her rostered hours in 2013 and again in 2014 are all irrelevant to the Complainant’s dismissal.

The facts of the case leading to the Complainant’s dismissal are clear and relatively straightforward.

The Complainant was employed by the Respondent in specific post on a part-time basis, working 3 days per week.   As part of an internal restructure in the Respondent Company in May 2015 it was decided that the job performed by the Complainant would be merged with and become part of a newly created post of Retail Team Leader.   This was a full-time job compared to the Complainant’s part-time one, with a different title, different duties, different pay scale and different reporting arrangements.   This new position was advertised internally along with a job description and the Complainant did not apply for the position.   The Respondent recruited externally for the position and as the Complainant’s position was now redundant, the Respondent, in accordance with the provisions of the Redundancy Acts offered her what they considered to be suitable alternative employment.   It should be noted that this alternative employment involved the same rate of pay the same hours of work and no diminution in the Complainant’s terms and conditions of employment and I note there is no suggestion that the work offered was work she was not fully capable of performing.

The Respondent first made this offer directly to the Complainant on 31^st July 2015 and it was confirmed by email of the same day.   This was again confirmed in writing to the Complainant along with a proposed written statement/contract confirming the details of the job and she was asked to return a signed copy by 3^rd September 2017.

On 7^th September 2015, when the Complainant had still not responded or replied the Respondent again wrote to the Complainant pointing out they had not received a signed acceptance of the position.   She was advised of the consequences of refusing this job offer that her non-acceptance would in effect be dismissing herself.   She was advised to seek independent advice before making a final decision.   The Complainant sought advice from a Solicitor (not her Representative at the Hearing), who wrote to the Respondent seeking an extension of the deadline and the Respondent then wrote to the Complainant confirming having received the Solicitors letter and also confirming they did not engage with third parties in relation to internal issues and extending the deadline to 18^th September 2015 at 5.00pm.   Further correspondence was received from the Solicitor in which they claimed there were discrepancies in the salary being paid to persons doing the same work as the Complainant and stating that the Respondent had not in fact offered the Complainant reasonable alternative work.   On the same date the Respondent again wrote to the Complainant again confirming that they did not engage with third parties in relation to internal matters and telling her that they required a decision from her on or before Friday 18^th September 2015 at 5pm.  

On 17^th September 2015 the Solicitor wrote again stating inter alia the purpose of the letter was to confirm that there is no reasonable offer of alternative employment – and went on to state that if the Respondent did not address the issues raised by them then the Complainant will have to take legal proceedings as may be advised against the Respondent.

On 13^th September 2015 the Respondent again wrote to the Complainant, again confirming they did not engage with third parties.   The stated their belief that what they were offering was reasonable under the provisions of the Redundancy Acts; that she would not be suffering any loss of earnings and that the new location was closer to her home.   They stated they were not in a position to alter the offer made and they were willing to review her pay rate after 3 months – and she was asked to confirm her final decision not later than 12 noon on Tuesday 22^nd September.   The Solicitor wrote again on 22^nd September 2015 repeating much of what they had already said and stating Inter alia that if the Respondent persisted in the attitude they had adopted, then as far as the Complainant was concerned she is being dismissed by them and unfairly so and she would be left with no option but to pursue whatever legal remedies are open to her in that regard.

On 15^th October 2015 formal terms and conditions were again emailed to the Complainant and she was asked to sign and return them by 22^nd October 2015.   She again did not reply and on 22^nd October 2015 at 4.06pm a reminder was send by email to her.   She replied by email at 4.35pm stating: “I am not happy to sign this contract as I don’t agree with the rate of pay”.

The Complainant was dismissed by letter of 2^nd November 2015.   The dismissal letter advised her of her right to appeal the dismissal decision, but she did not do so.   I note that this failure of itself can be fatal to any complaint for unfair dismissal as the Employment Appeals Tribunal (EAT) have consistently determined that the failure to avail of all internal procedures to deal with any issue or dispute an employee has is fatal to any claim for unfair dismissal and I note in the instant case that the Complainant had an independent legal advisor.   On this basis alone I must find and decide that complaint is not well founded and the Complainant was not unfairly dismissed.

When the Complainant was asked why she did not commence the new alternative job and sign the contract for it ‘under protest’ and reserve her right to pursue a pay increase she replied that she was at all times “acting on her then Solicitor’s advice”.

The Respondent is quite correct in their submission that the alternative work they offered the Complainant was reasonable alternative work in accordance with the provisions of the Redundancy Acts and innumerable determination of the Employment Appeals Tribunal in that respect.   In circumstances where the alternative work involved no change in the rate of pay and the terms and conditions of employment and there is no suggestion whatsoever that the alternative work was work that the Complainant could not do there can be no question that it was not suitable alternative and no reasonable person could reach any other conclusion.   The Complainant made it crystal clear that the reason she was declining the alternative job was because of the pay rate and that she was seeking an increase in pay before taking the alternative work and that this was the sole and only reason she was refusing the alternative work, she states this in her email of 22^nd October 2015, the only written statement from her in that respect, she states “I am not happy to sign this contract as I don’t agree with the rate of pay”.

The Complainant and her then Legal Advisor appears to consider that the Complainant can use a transfer to alternative employment to force the Respondent Employer to pay her a pay increase, while she was prepared to stay in her previous job on the existing pay rate.   This does not make sense and flies in the face of logic.

I do not understand why the Complainant did not accept the alternative position, if necessary signing the contract ‘under protest’ and reserving her right to seek a pay increase in the same way that she would have sought a pay increase if she had been able to remain in her existing position.   There is no logic or reason to the position adopted by the Complainant in that respect.

The Complainant states in her written submission that the Respondent did not follow fair procedures and in that respect states they:

(a)    Did not allow her to obtain independent advice

This is not correct, indeed the reverse is the case; as early as 7^th September 2015, the Complainant was advised in writing to obtain such advice before making any final decision.

(b)   Refused to deal with any third parties who she received advice from, which she believes she is entitled to

This is a reference to the refusal of the Respondent to deal with the Complainant’s original Legal Representative and is a very surprising submission as it was or should have been known to the Complainant and her Legal Representative that no such right exists.   It is extremely well established in law over a very lengthy period that there is no right for an employee to be legally represented in internal employment matters.   It is explicitly laid out in SI 146 of 2000 the Code of Practice on Grievance and Disciplinary Procedure and by the Supreme Court in Burns and Hartigan -v- Governor of Castlerea Prison [2009] E.L.R 109.

I note that the Complainant was afforded at least 6 opportunities over a period of more than 3 months to accept the alternative work and the deadline was repeatedly deferred to facilitate her.   The Respondent was unusually patient and tolerant in that respect

I am completely satisfied that the Respondent observed fair procedures that fully respected the Complainant’s rights in dealing with this matter.   The actions of the Respondent in this matter were consistent with the reasonable actions of a reasonable employer.  

Based on the foregoing I find and declare that the Complainant was not unfairly dismissed by the Respondent; the complaint is not well founded it is rejected and is not upheld.

Dated:13^th October 2016