ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001951

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

Date of Adjudication Hearing: 27/06/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, 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 submits that she was constructively dismissed from her position as retail supervisor with the respondent on foot of her effective demotion in the course of which she was obliged to apply “for what in real terms was ‘her job’.” It is accepted that a nomenclature change was introduced and that aspirational concepts were set out as part of the “new role” which were implied in the retail supervisor role however no substantial change was initiated save the requirement in the specific case to prepare rosters for 2 staff and report to the national sales manager rather than the retail sales manager. The role was stated to be full-time (36 hours per week) and she was prepared to fulfil that requirement. It is also accepted that a change in pay scale was introduced but this does not go to the root of the particular role and despite earlier reference the new regime was not universally introduced. It is submitted that the re-organisation was a sham to ensure that the complainant would end up losing her position and seniority. She attempted to challenge the move but was cajoled into participation in the first instance. When she was unsuccessful in her application for her own position she was faced with the conflicts which would inevitably arise between herself and her former junior who was successful in her application for the position. Those conflicts which were the subject of a grievance complaint were ultimately the straw that broke the camels back. She became ill as a result of the accumulation of these events and was medically advised to remove herself from the “toxic and unhealthy situation”. She proffered her resignation on foot of that advice. The respondent had been put on notice of the complainant’s concerns from the outset and was provided with every opportunity to remedy the situation. The first she knew that her job was threatened was when she received a general mail addressed to all staff. This was the first indication that the respondent would not now be bound by the contract it had entered into with her two years earlier. These events took place against a background of impeccable service over the years.

Respondent’s Submission and Presentation:

The respondent submits that it went through a major restructuring in 2014 necessitating a greater than 50% decrease in staff numbers. As part of a further restructuring it was decided to create the position of retail team leader in each of its five stores. The complainant at first complained that she felt her position was being usurped insofar as she felt that she was performing all the functions of the new role. The matter was clarified to her satisfaction. She applied for the new position (25^th of May 2015) and was interviewed on the 6^th of July 2015 but was not successful. She again demurred but seemed to accept the situation following local discussions. She agreed that she would work with and support the new team leader. The respondent appreciated that the complainant had been previously given the title of retail supervisor and valued her contribution and increased her hourly rate of pay from 31^st of August 2015. She made a formal grievance against the retail team leader on the 20^th of November 2015. An outcome of grievance document was issued on the 26^th inst. which provided for an appeal within 5 days if dissatisfied. The matter was discussed with the parties at a mediation meeting on the same date. At the end of that meeting the complainant submitted a sick certificate dated the 25^th inst. She continued to provide illness certification until the 13^th of January 2016 at which point she resigned her position citing work related stress due to the internal recruitment process and the behaviour of the retail team leader as justification. It is settled law that in order to prove constructive dismissal that an employee must show that they exhausted all procedures available to them before taking the drastic action of resigning. In this case the complainant was offered an opportunity to appeal the outcome of her grievance and failed to do so.

Decision:

The question arising in this case is whether or not it was reasonable for the complainant to proffer her resignation and pursue her complaint for unfair dismissal in all of the circumstances described. In coming to a decision in this matter and when considering the answer to that question I must have regard to the provisions of the Act on the one hand and settled law on the other.

s 1 - [(1)] (c) (b) of the Actprovides -that dismissal, in relation to an employee, means - The termination by the employee of his/her 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 notice of the termination to the employer

In constructive dismissal cases the complainant must therefore satisfactorily demonstrate that the respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for him/her to continue in the employment and which fundamentally breached his/her trust and confidence in the bona fides of the other party. In so doing the claimant must also show that his/her action/behaviour in resigning his/her position was reasonable in all the circumstances.

The law is settled as it relates to the standard of reasonableness required on the part of the employee in that it requires that s/he take all reasonable steps to apprise the offending employer of its unreasonable behaviour thereby offering an opportunity to the other party to amend its behaviour appropriately or to the satisfaction of the employee in first instance and in most cases requiring the employee use any/all agreed dispute resolution mechanisms available where it would not be unreasonable to do so. The so called “mirror image concept” has been adopted to envisage the particular requirement.

In this case the employer was initially made aware of the offending behaviour however it would appear that it was satisfied that the claimant was appeased when she acquiesced and applied for the new position albeit unsuccessfully and thereafter accepted the increase in hourly rate. It is a matter of fact that the claimant worked under the new regime for a considerable period of time without demur and that she was engaged in a separate grievance process with the respondent at the end of November. I am satisfied that she could have raised the grievance in respect of the reorganisation and demotion prior to the submission of her resignation and am of the opinion that she was obliged to do so in the first instance in order to advance a complaint of constructive dismissal.

The fact that she did not do so is fatal to her case in and therefore I must find that the complaint is not well founded.

Dated:   19^th January 2017