ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001657

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

Date of Adjudication Hearing: 24/06/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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:

1. The Claimant started work in a village convenience store in 2004. She worked there continuously until the termination of her employment on the 5^th of November 2015. During her employment there was a transfer of undertakings. At no stage did she receive a contract of employment from any of her previous employers.
2. In the end of February or the start of March 2015 the previous owners introduced the new owners to the staff.
3. There were five employees working in the shop. There was a team leader, deputy team leader and three staff members. The directors of the company worked alongside the staff also.
4. The Claimant worked part time depending on the roster. She worked up to twenty one hours per week. She worked as a cashier and she also worked in the deli.
5. In June 2016 the managing director called a meeting for all the staff members. The meeting was called for the purposes of:
6. Contracts
7. HACCP requirements, and
8. Job titles

1. The managing director advised the staff that he had to put contracts of employment in place. When he was asked for a copy of the contract he replied “go online and look it up”.
2. When the Complainant asked for a written document, this was produced to her.
3. The Complainant was not happy with the contract of employment provided. In particular the very first paragraph of the contract which stated

“Commencement Date:

Your employment began on the 2^nd of February 2015 and no previous employment counts as part of your continuous period of employment”.

1. Neither was she happy with the clause regarding place of work:

“Place of work

your usual place of work will be [redacted]. You may be required to work in our company’s other locations in Ireland and as well when required by the company. The company reserves the right to relocate your main place of work, however, you will be given as much notice of this change as possible.”

1. The Complainant believed that by signing this contract her prior service would have been “wiped out”. She advised the managing director that she would not sign the contract.
2. She confirmed that she was put under pressure to sign the contract. She was advised if she didn’t sign the contract she would have to leave.
3. She said that the issue of the contract was raised on a number of occasions. There were gaps of weeks between when the question was raised.
4. The Complainant advised that the managing director told her that she needed to sign it and that others had signed it.

1. Before the written contract was proposed in June, the Complainant was asked to work in another shop owned by the Respondent. She did for one day, but she didn’t want to continue with that location.
2. The Complainant alleged that the managing director treated her differently by not allocating her an extra shift which he had begun to do since taking over the business. The Complainant gave evidence that the respondent stated that “he only cared about girls that signed the contract”.
3. The Complainant also stated that she lost out on promotion because of her refusal to sign the contract.
4. The Complainant was not aware that the Respondent had changed clauses in contracts for her colleagues. She was not aware that her colleagues had even raised the issues of the contracts with him.
5. The Complainant felt that she had made her views known to the Respondent and it was a matter for him to come to her with a new contract. She said he “would bring it up” meaning raise the issue of signing of a contract every now and again and she would say no that she wouldn’t sign. She told the Respondent that if he would change the contract she would sign it.
6. The Complainant agreed that when she indicated to the Respondent that she wouldn’t travel to another one of his shops he replied OK.
7. The Complainant gave evidence that she felt it was unbearable to work for the Respondent.
8. The Complainant worked her shift on the 3^rd of November 2015. This was a late shift. She worked very hard on that shift and her husband came into the shop and helped her to complete her tasks. She was off work the following day the 4^th of November 2015.
9. On the 5^th of November 2015 she was at the till working when the managing director called her into the office. Between 10.30 am and 11.00am she was called into the office by the managing director. He asked her to look at the photos he had received from the team leader. He indicated that there were three knives left in the sink on the night of the 3^rd November 2015.
10. The Complainant had an issue with this as the team leader had also left knives in the sink in the deli. She felt that they were silly little things. She felt that the managing director did not appreciate all the work that she had done in the shift the night before and raised this with him. His response was that he didn’t care, the deli was all that he cared about. The Complainant gave evidence that he was roaring and shouting at her.
11. When she left the office the managing director shouted again because there were packets of sweets in the wrong area of the shop.
12. The Complainant told the managing director that she was resigning and walked out of the shop mid shift. She went to her home.
13. The Complainant admitted that he managing director rang her on two occasions to her home that day. She said that he tried to talk to her but that she was too upset. She said he rang again looking for keys to the shop. She gave evidence that he didn’t ask her to reconsider her resignation.
14. The Complainant felt that she couldn’t talk to the team leader or the deputy team leader about what happened.

Respondent’s Submission and Presentation:

2. The managing director of the respondent gave evidence to state that they took over the company following a share purchase. The transfer of undertakings legislation did not apply as the employer remained the same.
3. After the 2^nd of February 2015 he had a NERA inspection in another company the Respondent owned in a neighbouring county.
4. He enquired with the staff in the shop that the Complainant worked in if they had contracts of employment. He was advised that they did not. He logged onto Citizens Information website and found a sample contract. He amended some of the clauses in that contract for the contract he had been provided with in a former employment himself.
5. The managing director called a staff meeting in the middle to the end of June 2015 to advise the staff on HACCP training/inspection and issue contracts of employment. At the meeting the staff stated that they needed to see the contracts of employment. He gave evidence that he gave the Complainant her copy that evening. He never gave another member of staff her contract because she never asked for it.
6. In the first weeks of July 2015 he gave the contracts to the other three members of staff. He went on holidays in July and on his return in August the other members of staff stated that they would sign their contracts but they wanted changes to the clauses that the Complainant had issues with.
7. He gave evidence that once he knew that the contract of employment was wrong he contacted his solicitor and he took legal advice on what he had to do.
8. He took these changes on board and issued new contracts of employment to those members of staff. These contracts were signed by the other members of staff in September 2015.
9. The managing director gave evidence that between June and November 2016 he asked the Complainant two or three times for her contract. He was aware that she had issues with the contract and particularly the clauses that had been raised by the other members of staff. He didn’t ask that the issues of the contract be put in writing. He wanted her to return the contract of employment that he had provided for her, before he would reissue her with a new one. He was aware that the Complainant had received advice on the matter.
10. He asked the Complainant to provide evidence to him as to the length of time that she had been employed in the shop. He stated that she never came back to him with this information.
11. He gave evidence that he worked with her in the evening shifts and that he felt he got on very well with her.
12. On the 5^th of November 2015 he came to the shop between 9.45 and 10.00am. He had previously received a photo from the team leader the previous day as regards the condition that the deli was left in by the Complainant on the 3^rd of November 2015. He was not aware that the Complainant’s husband had worked in the shop to assist her on that evening.
13. He called the Complainant into the office and said that he wanted to discuss cleaning of the deli with her. This was because he was under pressure from the HSE and he had a HACCP notice already.
14. He said the Complainant came into the office and he showed her the photo on his phone. He asked the Complainant what was this? His evidence was that the Complainant started shouting at him saying “I don’t want this job”. He stated that she walked out and went out through the shop and left the building. He said as she was leaving the shop, she shouted at the team leader.
15. The managing director gave evidence that he didn’t have a mobile number for the Complainant but he had her home number and he called it. He said that her husband answered the phone and Complainant came on the phone. He asked her was she coming back and she said “no that she was resigning”.
16. He said to her that he had not received a letter of resignation. He stated she gave him no reasons for her resignation on the phone.
17. His evidence was that at about 1.30pm on that her day her husband came into the shop and handed in the letter of resignation.
18. He gave evidence that he rang again to ask her if she was still resigning and she said yes. His evidence was that she requested her P45 for the following day.
19. The managing director gave evidence that he rang again at 6pm and asked her to return the keys. This was done. The next day the Complainant called to collect her P45.
20. He gave evidence that he did ask the Complainant to work extra shifts but she declined to do so because she was doing part time delivery work.
21. He disputed that he raised his voice. He stated she did all of the shouting.
22. He described he had a very close friendship with the Complainant up until the 5^th of November 2015. He stated that they never had an argument.
23. He gave evidence that he was surprised by her reaction to him showing her the photographs. He felt that there were other issues in the background which he was not aware of, inter staff issues.
24. There was reference to a grievance procedure in the contract.

Decision:

3. 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.
4. 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.
5. Constructive dismissal is defined in s.1 of the Unfair Dismissals Acts 1977-2007 (the “UDA”) as:

“[T]he 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 nice of the termination to the employer”.

3. The statutory definition contains two tests either or both of which may be argued by an Complainant:
6. In a constructive dismissal claim, the Complainant bears the burden of proof which has been described by the EAT as a high burden of proof to demonstrate that he or she acted reasonably and had exhausted all internal procedures, formal or otherwise, in an attempt to resolve the grievance with his or her employers.
7. I am required to assess whether there has been a significant breach of the terms of the complainants position going to the root of the contract. If I am not satisfied that there has been a significant breach, I am then required to examine the conduct of both the Complainant and Respondent , together with all the circumstances surrounding the termination, to establish whether or not the decision of the Complainant to terminate the contract was a reasonable one.
8. The Labour Court in Paris Bakery & Pastry Ltd v Mrzljak DWT 68/2014 set out that the first test/limb applies where “an employer behaves in a way that amounts to a repudiation of the contract of employment”. The Court noted that not every breach of contract will give rise to “repudiation”.
9. In this case, I do not accept that the drafting of the contract of employment with the clauses that the Complainant had an issue with met the test to succeed under the first test of the definition of constructive dismissal set out in section 1 of the Unfair Dismissal Act. The complainant continued working with the Respondent while these issues were still ongoing. The parties appear to have been in a protracted negotiation process whereby the matter of the contract was raised occasionally. The Complainant was requested to provide proof to satisfy her start date of employment and this was not done. The Complainant had worked in another location before the contract was issued to her, but this did not occur again during her employment with the Respondent.  
10. While employees are generally expected to invoke the employer's grievance procedure in an effort to resolve their grievance before resigning, this may not prove fatal to a constructive dismissal claim in sufficiently serious circumstances. In this case there was a grievance procedure in the contract of employment issued to the Complainant in June 2015. The Complainant refers to this as a draft contract. Despite same, I note that the Complainant did not have any issue with the terms of the grievance procedure. While it is a short basic procedure, it did set out what steps were to be followed if the Complainant was “dissatisfied with any matter relating to her work”.
11. The Respondent raised an issue with the Complainant as to the state of the deli sink at the end of a particular shift.
12. There is a divergence of evidence between the parties as to what occurred in the office on the morning of the 5^th November 2015. There were no witnesses in the office; however the Team leader who was in the shop at the time gave evidence at the hearing that she could hear shouting in the office. She said that she heard loud voices.
13. The EAT has held that the employee needs to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment intolerable.
14. The Complainants solicitor submitted that the incident of the 5^th November 2015 was not to be viewed in isolation, but as part of a larger series of events related to the contract terms and varying her existing terms.
15. I have considered the issues the Complainant had with her contract of employment and the incident of the 5^th November 2015. I don’t accept that there was a connection between the Complainants issues with her contract and her resignation. These issues were in the background but not the reason she resigned on the 5^th November 2015.
16. I note that the Managing Director telephoned her at home twice after she walked out of work. He asked her if she was coming back to work. While I accept that his reasons may have not been primarily out of concern for the Complainant (he was down one member of staff at the time) I accept that he would have asked her if she was coming back to work and when he rang after receiving her letter of resignation, if she was still resigning.
17. Having considered all of the evidence proffered at the hearing, I don’t accept that one heated argument with the Managing Director in a workplace where they worked side by side for a number of months without incident, entitled the Complainant to resign her position and claim constructive dismissal. Resignation should not have been the first option for her. The Complainant was entitled to remove herself from an acrimonious situation, but she should have allowed the situation to cool down and look at other options before she took the decision to resign. She should have looked at utilising the steps in the grievance procedure before she resigned.

Dated:   15^th September 2016

Marguerite Buckley