ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006881
| Complainant | Respondent |
Anonymised Parties | Sales Assistant | Supermarket/Convenience Store |
Complaint:
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-00009208-001 | 20/01/2017 |
Date of Adjudication Hearing: 27/07/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The Complainant was employed as a Sales Assistant from August 2012 to 18th October 2016. She was paid €8.65 per hour and worked an average of 30 hours per week. She has claimed that she was constructively dismissed and has sought the redress of compensation.
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Summary of Complainant’s Case:
On 31st March 2016 the Complainant was informed by the Book Keeper that her till was short €99.00 for 28th March 2016. She expressed surprise at this as she doesn’t make mistakes. She was called to a disciplinary hearing on 4th April 2016. However on 2nd April the Manager called her in to the office and told her that he had her on CCTV making mistakes. He told her that she does make mistakes and that he was disgusted and disappointed with her. She reiterated that she doesn’t make mistakes. The Laser & Credit card report for 28th March recorded no mistake for 28th. On 4th April she wanted the Assistant manager to accompany her but she was not available that time and so she was rushed into a meeting. So she was denied representation. The meeting lasted only 5 minutes and she was confused by this meeting. She was given minutes of the meeting but she disputes them. No evidence of wrongdoing was presented. She asked that the CCTV would be checked. This did not happen. On 7th April 2016 she was issued with a Verbal Warning. On 12th April she appealed the outcome. The Assistant Manager read out loud the appeal letter in the office in front of other staff. This was demeaning to her. On 16th April she was told to appeal to the HR Department not the manager, she also was told that her till was short €20.00 on 14th. She again repeated that it was impossible as doesn’t make mistakes. Again no evidence of the shortage was shown. The Laser & Credit report was correct. Following this she had a panic attack at work and was hospitalised. She had to take two days off work. Following this second accusation she was unable to cope with the repeated allegations of wrong doing. She attended her GP and was prescribed medicine. She also attended psychotherapy. She continues to suffer from anxiety concerning this employment. She was certified unfit from April 2016 to October 2016. In October 2016 her GP advised her against returning to this employment. On 18th October 2016 she resigned her position on health grounds. She has not worked since. She has actively sought work. Her loss of earnings has been €10,000 and medical expenses are €1,500.It is her position that the Respondent has failed the contract and reasonableness test. They failed in most of these tests. She had the right to know the nature of the allegations made against her; the right to a fair and impartial hearing; the right to representation; the right to state her case; the right of appeal. The actions of the Respondent were in breach of implied anti bullying and harassment policy. She was subjected to repeated warnings over a two week period. She was not afforded the opportunity to view and assess the alleged mistakes. She was not given a fair hearing. The Respondent’s actions caused her ill health. Ultimately due to the anxiety and stress she was left with no option but to leave her employment. She has sought compensation. |
Summary of Respondent’s Case:
This is a cash business. Employees handling cash every day make mistakes. Many mistakes are minor ones and are not investigated, e.g. €20 staff are told by the manager but no action is taken. But in this case of €99/100 it was investigated. She had been issued with a final written warning in 2013 for till irregularities and there have been no problems since then. She was a good employee and they are sorry that she left. Nobody was out to get her. But her till was short €99.00. She was issued with a verbal warning which was a minor response. The Respondent dealt with it as a minor mistake. They never expected that it would end up as a constructive dismissal case. No appeal took place as she was out sick. She consulted a solicitor on 29th June 2016. No request was made to hold the meeting while she was out sick. She resigned her position while out sick. The matter was then referred on to the WRC. When she resigned her position on 18th October 2016 there was no active warning on file because it had expired. The Respondent made three attempts to send a registered letter but to no avail. No grievance was lodged; there was no complaint of bullying and harassment. She has failed to meet the requirements to succeed in a constructive dismissal. She did not raise a grievance; she resigned while out sick so there was no contact with the company, she failed to give the Respondent an opportunity to address her concerns. This complaint should be rejected. |
Findings and Conclusions:
Definition of constructive dismissal
Sec 1(b) of the Unfair Dismissals Act states, “the termination by the employee of his/her contract of employment with his/her 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”.
In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct.
In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.
It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”
In Tierney v DER Ireland Ltd UD866/1999 the EAT “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.
In the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.
Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84) it stated,
i) the onus is on the claimant to prove his case,
ii) the test for the claimant is whether it was reasonable for him to terminate his contract”.
The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated,”In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she had no option but to resign her position”
Murray v Rockavill Shellfish Ltd [2002] 23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.
The Labour Court UDD 1635 Mary Kirrane v Barncarroll Area Development Co Ltd stated, “Where constructive dismissal is contended for it is for the person making the claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour has fundamentally undermined the employment relationship. The person claiming constructive dismissal has an obligation to access available grievance procedures in a course of attempting to deal with whatever situation has led to consideration of termination of the employment”.
McCormack v Dunnes Stores : EAT UD 1421/2008
“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”.
I note that the Complainant’s till was identified as €99.00 short for 28th March 2016. I note the Complainant’s assertion that this was impossible as she doesn’t make mistakes. I find that this is an unusual assertion that a person who handles money on tills every day of work does not make any mistakes. Yet I note that she received a final written warning in 2013 for till irregularities. I note that she was issued with a verbal warning for this matter which is the least sanction possible and generally viewed as a minor response from the Respondent. I note that the Respondent’s manager subsequently called her into the office to advise her that she had made a further mistake regarding a €20 till shortage. I interpreted this as the manager marking her cards that she does make mistakes despite her assertions that she didn’t. I note that she became very agitated and upset regarding this accusation of till irregularity. I find this unusual as she had worked in this business for manty years and till operators have their work audited every day. I have considered this incident of the €99.00 shortage and understand the Respondent’s position that it was a minor matter. I did not find that the Complainant had substantive grounds for deciding to resign her position. I find that the Complainant was aware of the allegations made against her. She was advised of the till shortages, this was clear. I find that the Respondent was correct to investigate this shortage and was obliged to do so for sound business reasons. I find that she was given adequate notice of the disciplinary hearing so as to make arrangements for representation. I note that she did not request a postponement of the hearing when the representative was not available that day. I note that she was out sick from April to October 2016. I find that there was no reason why the Respondent could have had any negative impact upon the Complainant during the time that she was out sick. I note that she consulted a solicitor on 29th June 2016. I note that she did not raise a bullying and harassment grievance while in her employment. I find that she decided to resign her position some six months after she had gone out sick. I find that she did not give the Respondent any indication that she was contemplating resigning her position. I find that she did not give the Respondent an opportunity to address any concern that she may have had. I note that she resigned her position after a time that she had consulted a solicitor. I find that the Complainant has failed to establish that she had no option but to resign her position due to the conduct of her employer. I find that she has failed to demonstrate that she was justified in her decision to resign and that it was reasonable for her to do so. I find that she has not been constructively dismissed. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
For the above stated reasons I find that this complaint should fail
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Dated: 24 August 2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Constructive dismissal |