ADJ-00003806

Complainant

Respondent

Anonymised Parties

A Bar Worker

A Bar and Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00005607-001

30/06/2016

The complainant was employed as a bar worker on the basis of a part time contract and on the National Minimum Wage.

In January 2016 she experienced a reduction on her hours which led to her resigning her position.

She is claiming constructive unfair dismissal.

The respondent says that any reduction in the complainant’s hours was attributable to seasonal factors; common in the licensed trade in January when sales fell by seventy-five per cent.

Since she started work with the respondent her average hours were just under thirty.

In applying the reduction to the complainant she was treated no less favourably than any other person who was employed on a part time contract. Indeed in respect of one comparator she was given more hours. (Details were provided of the relevant rosters).

In addition, in relation to one of the weeks for which she was not rostered she had not turned up for her shifts the previous week. There is only week in respect of which the complainant has any grievance, that of January 11^th.

In respect of the complaint of constructive dismissal the complainant did not engage with the employer or use the grievance procedure as she is obliged to do.

The complainant had an accident and had been off work for some time. On her return she says that she felt isolated and that her hours were cut.

She says she did raise the cuts in her hours by text message on five occasions.

She was diagnosed with a mental health condition just before the Christmas period and told her manager about it. Despite producing a medical certificate he asked her to work on that particular night and she did so.

The factors which led to her resignation were cumulative.

The manner in which the respondent dealt with her illness and being rostered when she was medically certified as unfit for work, having to return early from her injury due to the accident and finally the reduction in her hours.

Ultimately, she resigned because, having at one time worked over forty hours she could not afford to meet her outgoings on the basis of the reduced hours.

She did agree that it was normal that the available hours would fall at that time of the year.

The key facts were not in dispute in this case.

Undoubtedly, the hours were reduced in the January period.

One issue that was in dispute was whether the complainant was treated less favourably than other relevant comparators and it appeared from looking at the evidence in detail that she was not.

The complaint is one of constructive dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in ireland’ the late Dr Mary Redmond has said (at p340

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

In this case the complainant did not dispute that she had been given a copy of the grievance procedure.

Looked at by reference to either of the above tests the complainant does not come anywhere close to the burden of proof necessary to ground her case.

The explanation provided by the employer for the downturn in its business in January was persuasive and self evident. The complainant was not treated in any materially different way to the other employees.

However, her peremptory resignation without reference to the company procedures is fatal to her case on these facts.

The EAT has made it clear in a series of decisions, and followed by the Adjudication Service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above)

For example,in Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant do not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However for a period of six months she did not attempt to resolve the issue.

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

Even by applying the ‘Berber’ test to the complainant’s conduct alone he case would be in difficulty. Her failure to avail of internal procedures to even establish what her future pattern of work might be, much less complain about what had happened renders the complaint devoid of any merit.

For the reasons fully set out above I do not uphold complaint CA-00005607 and it is dismissed.

Constructive unfair dismissal, use of grievance procedures