ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00003000

Complaints:

Date of Adjudication Hearing: 13th January 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 27^th April 2016, the complainant referred complaints to the Workplace Relations Commission pursuant to the Unfair Dismissals Act and the Payment of Wages Act. The complaints were scheduled for adjudication on the 13^th January 2017. The complainant attended the adjudication and was represented by O’Mara Geraghty McCourt solicitors. The respondent was represented by Peninsula Business Services and three witnesses attended to give evidence on its behalf.

In accordance with section 41 of the Workplace Relations Act and section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant commenced employment with the respondent on the 18^th January 2015 and her employment ended on the 5^th February 2016. She was paid €2,916 per month gross. The complainant asserts that she was constructively dismissed from her employment and also asserts an entitlement to four weeks’ notice pay. The respondent denies the claims.

Summary of Complainant’s Case:

The complainant commenced employment with the respondent on the 18^th January 2015 and resigned from her employment on the 22^nd January 2016. Her contract of employment provided for a six-week notice period and also made provision for garden leave. The complainant continued to work until the 5^th February 2016 and she states that she was to be paid for the four remaining weeks of her notice. At the hearing, the complainant submitted that the 5^th February 2016 was the date of dismissal.

The complainant outlined that after she completed a Masters, she commenced her role with the respondent as a project coordinator. The respondent provides project management in new store and in-store fit-outs. The complainant organised administrative papers and provided access to workers. After three months, the complainant was promoted to the role of project manager and given a salary increase. It had been her role as coordinator to report into the project manager.

The complainant had initially reported to the General Manager, but that this working relationship changed when the Supervisor joined the team. The complainant returned from a period of annual leave in October 2015 to find that her desk had been emptied and her possessions placed in a box. The General Manager told her that she could pick another desk in the open area. An issue had arisen during her annual leave with a project for a named clothing brand and this led to the Supervisor telling the complainant that this account was being taken from her. The complainant appealed this decision to the Managing Director, who decided that she should keep the account.

The Supervisor would put pressure on the complainant, for example in emailing certain instructions to the complainant that were inconsistent with the communications of the General Manager and the Managing Director. The complainant raised this with these two managers and they held a number of meetings on this matter, the first of which followed the complainant’s return from annual leave in October 2015. The complainant, the General Manager and the Office Manager attended four meetings, while the Managing Director attended on the first and last occasion. An incident arose with the complainant’s annual bonus, where the Supervisor had informed her that she would not be paid this. The complainant became upset and raised this with the General Manager; he told her that she would be paid the bonus (and she was). The complainant declined to meet the Supervisor on her own and the General Manager and Managing Director agreed to accompany her to any meeting they had. She outlined that in late November/early December she was taken to hospital and despite being in hospital, the Supervisor and General Manager made numerous phone calls and also sent her many emails, which she had to answer.

The complainant had been upset in the October 2015 meeting with the Managing Director. She had cried in his office, telling him that the pressure was too much. She said that she had been threatened with losing accounts and did not receive the support needed for her role. She had also been upset at meetings attended by the Office Manager. In respect of the meeting of the 22^nd January 2016, this had been called by the Managing Director. She was not informed why it was being held and the Managing Director, the General Manager and Office Manager were all present. At the meeting, the complainant was informed that the project manager role was not working out and she was to be moved to the construction unit within the respondent. This was a surprise to the complainant as it had not been mooted before. The construction unit involved the construction of buildings, as opposed to the fit-out of stores. The complainant said that she has no qualifications in construction, so her role would have been an administrative one and therefore represented a demotion. The Managing Director had told her that she could take it or leave it. The complainant had raised issues regarding the Supervisor for many months and when their relationship was not working out, the solution was that someone had to go. At this point, the complainant tendered her resignation. The Managing Director asked her to reconsider, but that she would have to move to the construction unit.

The complainant confirmed her resignation later that day. The Managing Director asked the complainant to work the first two weeks of her six-week notice period, after which he would pay her out. She referred to this agreement in her letter to the respondent of the 22^nd January 2016. She explained that she wanted to maintain a good relationship with the respondent, in order to get a positive reference. She commented that in the respondent’s reply of the 27^th January 2016, it acknowledged the issue that had led to her resignation. The complainant said that she completed her handover on the 5^th February 2016 with the General Manager and a named colleague. When she said that she thought she had finished, the General Manager said that she was expected to work from home for the remaining four weeks of her notice period. She was surprised as this had not been raised before and that staff of the respondent did not work from home. The complainant replied that she could be available on her work phone, but the General Manager insisted that she immediately hand over her phone and laptop. He asked for her personal mobile number at which she could be reached over the next month. She refused to provide this and referred to the November/December incident where she had been “hounded” by phone calls from the respondent while in hospital. She said that she could be contacted via her personal email account. The respondent later invited the complainant to attend a meeting on the 15^th February 2016 and the letter states that it is to discuss the events of the 5^th February 2016. The complainant emails in reply to say that she does not wish to return to the workplace and refers to feeling humiliated and threatened and to a hostile environment. She said that she did not wish to go back to a meeting after what had happened in the previous meetings.

In respect of mitigation, the complainant outlined that she had sought employment but had not found work. She said that she had undertaken a night course in law in this time.

In cross-examination, it was put to the complainant that it was not unreasonable to ask her to move desk on her return from annual leave; she replied that to be asked to move desk was not unreasonable, but for this to be done without asking her and while she was on annual leave was problematic. She confirmed that the Managing Director had told her that she would keep her accounts, including the major client. It was put to the complainant that when she had felt harassed from October 2015 on, she was able to bring these concerns to the Managing Director and the General Manager; she replied that she had no choice but to bring her concerns to senior management as her communication with the Supervisor was broken. It was put to the complainant that the respondent had, in fact, paid her a bonus of €6,000; she confirmed that this was the case. The complainant accepted that the respondent had acceded to her request regarding meetings with the Supervisor. In respect of the hospital visit, the complainant confirmed that both the Supervisor and the General Manager had been in contact with her. It was put to the complainant that the Managing Director had offered to move the complainant to a new contract at the meeting of the 22^nd January 2016; she agreed that she had been given a contract to sign, but the meeting had not been about the contract. She had wanted to meet with the Managing Director prior to signing the contract. It was put to the complainant that the role in the construction unit was one of responsibility and required experience; the complainant did not agree and said that the Project Manager role in the construction unit was completely different. It was put to the complainant that the respondent had behaved reasonably in proposing the transfer and that it involved more duties and a higher rate of pay; the complainant did not agree that it was reasonable for the respondent to propose the transfer and that she had not been interested in the role. She said that she was already on €35,000 per year at the time she was given the new contract and salary had not been discussed.

In further cross-examination, the complainant agreed that she had been asked to reconsider her resignation. She did not accept that she had agreed that she would be paid for the remaining four weeks and that she would continue to be an employee. In respect of the invitation to a meeting of the 15^th February 2016, she said that she did not know what this meeting would be about, especially as she had been thrown out of the meeting of the 5^th February 2016. It was put to the complainant that the construction unit offer allowed her to develop her skills with no change to her salary and title; she replied that she considered the proposed move as a punishment and they had not discussed her salary or title. She said that it had been unreasonable for the respondent to demand the return of her work laptop and mobile phone when the respondent wished to contact her on her personal phone for work queries. The complainant confirmed her signature on the contract of employment. It was put to the complainant that the contract of employment contained a Garden Leave provision; she replied that she had not been placed on Garden Leave but had been told that she was to be paid off. It was put to the complainant that she had not lodged a grievance in writing; she replied that she had and sought for these documents via a data access request. She was not sent the relevant information submitted via a HR tool. She had also made complaints via her work email. She accepted that the General Manager had said that she would not have to meet the Supervisor on her own. It was put to the complainant that she had failed to comply with the Garden Leave provisions of her contract of employment in failing to attend further meetings; she replied that she was not paid in this time and that the respondent had not said to her at the meeting of the 5^th February 2016 that she would have to attend further meetings. It was enough for her to provide her personal email address. It was put to the complainant that she had been paid up to the 5^th February 2016; she replied that she had been paid up to a point.

In re-examination, the complainant said she began to report directly to the Supervisor on her return from annual leave in October 2015. She had not signed the new contract of employment and had asked to meet the Managing Director regarding the contract. The Managing Director had said that the reason for the move was her relationship with the Supervisor.

In closing submissions, it was submitted that it was clear that the complainant had brought issues, and their impact, to the attention of the respondent. The respondent had attempted to address these issues and that the evidence of the respondent witnesses had backed up her case. The respondent had been aware of the issues raised by the complainant and she had complied with the grievance procedure. In respect of the meeting of the 22^nd January 2016, this had not been a meeting regarding a promotion for the complainant and there was a conflict of evidence between the parties. No attendance note had been put to the complainant. In the context of the issues raised by the complainant over the previous six months and the suggested transfer, the complainant was entitled to consider herself dismissed by the respondent. The complainant confirmed that the respondent had not provided her with a reference.

Summary of Respondent’s Case:

The respondent denies the claim. It states that the complainant resigned from her employment and did not avail of the grievance procedure prior to doing so. It further submits that the complainant failed to attend meetings during the period of Garden Leave.

The General Manager gave evidence. He had been involved in hiring the complainant and she had been trained by the Managing Director. He commented that he had had a good relationship with the complainant. It was the respondent’s practice to review new employees after three months and to offer a pay increase where they were doing well. In August or September 2015, one of the complainant’s colleagues had moved on and the complainant took her duties. She was performing well and received a bonus. There were no issues with her performance.

The General Manager outlined that the complainant had raised how the Supervisor treated her, including that the Supervisor barked at her and gave her orders. He sought to address this by meeting the Supervisor and then meeting the Supervisor and the complainant together. A colleague of the complainant’s had later complained about the Supervisor’s behaviour. He asked the Supervisor to tone it down and to speak to colleagues in a friendlier way. He informed the complainant that she would not have to meet the Supervisor on her own, and that either he or the Office Manager would also attend. He acknowledged that the complainant had been upset at meetings. He commented that the respondent did not minute these meetings and that it operated a fast-paced office.

The General Manager said that prior to Christmas 2015, the respondent had offered the complainant a new contract. It wanted to keep the complainant. She did not sign the contract and had asked to meet the Managing Director, who was away at the time. In respect of the complainant’s desk on her return from annual leave, he could not remember the specifics of the incident or the reasoning for the change. He may have also been on annual leave around this time. He recalled that the complainant had been upset. The complainant, the Managing Director, the Office Manager and he attended the meeting of the 22^nd January 2016. The respondent raised the issue of the team and how it was not working out. The respondent wished to move the complainant to another team which also worked with the complainant’s major client. The General Manager did not accept that this was a demotion and said that it would have been a good move for the complainant and a good fit for her. The Supervisor did not have the experience to take on the construction unit role and she was also the manager. The complainant had said that she wanted to move. He could not recall whether it had been put to the complainant to take it or leave it. The complainant had later handed in her resignation. She had initially resigned in conversation with the Managing Director, and having been asked to think about it, she confirmed it later in writing that day. At the meeting of the 22^nd January 2016, they had discussed the complainant’s notice. It was agreed that she would attend work for the following two weeks and then would no longer be required to attend the office. The General Manager outlined that on the 5^th February 2016, the complainant told him that she had completed the handover. He asked her to return company property and that they did not expect her to attend work over the next four weeks. They then had an argument over the mobile phone and it was company policy that all company property be returned. The General Manager then invited the complainant to meet the Managing Director after he informed the Managing Director of what had happened.

In cross-examination, the General Manager accepted that the complainant had raised issues regarding her employment while she worked for the respondent. It was put to the General Manager that the complainant had been upset and crying at meetings; he replied that this had occurred once and could not recall it happening at a number of meetings. It was an unusual occurrence and related to the Supervisor. The General Manager said that he reacted by seeking to console the party who was upset and to listen to them. In respect of the complainant’s request not to have one-to-one meetings with the Supervisor, the General Manager said that this was an unusual request and that it was serious. He had agreed to accompany the complainant to any such meetings. He commented that the respondent had changed practices to have people accompany staff to one-to-one meetings with their line manager. He said that the respondent considered the complainant and the Supervisor as good employees and that he had spoken to them both about this. In respect of the hospital incident, the General Manager said that he could not recall it as described by the complainant, although he had been aware that she was in hospital. The General Manager was asked why, in the context of a fast-paced office with a practice of not preparing minutes of meetings, the Office Manager had attended meetings with the General Manager and the Managing Director; he replied that this was to have an extra set of eyes and ears and to take points and record information. Some of the meetings had been documented. In respect of the desk incident, the General Manager recalled the complainant being upset about this. It was put to the General Manager that at the meeting of the 22^nd January 2016, he had said that the position of the team was untenable and that the construction unit role was a promotion; he replied that the purpose of this meeting was to discuss the contents of the contract. They had wanted to listen to the complainant and that while the offer of the role in the construction unit was made to her; he was not sure whether this was stated as a promotion. He commented that the complainant had a strong relationship with the major client in question, more than had the Supervisor. It was put to the General Manager that the complainant was told she could “take it or leave it”; he replied that he could not remember whether the “take it or leave it” comment had been made to her. He was asked if alternatives to the construction unit had been put to the complainant; the General Manager replied that he did not think that this had happened. Alternatives could have been provided to the complainant had she not resigned. It was put to the General Manager that no alternatives to the construction unit role had been offered to the complainant. In respect of garden leave, the General Manager said he should have been told earlier about the Garden Leave and that there was no entitlement for the complainant to keep the company mobile phone while on Garden Leave. He said that the respondent had the complainant’s email address and could have contacted her via email. It was put to the General Manager that his emails did not deny that the complainant would be paid out; he replied that the respondent was not denying that the complainant was on Garden Leave. The General Manager was asked whether it was the case that the complainant had brought forward complaints and complied with the grievance procedure; the General Manager said that the complainant had brought forward complaints and had complied with the procedure.

The Office Manager gave evidence. She outlined that her role was that of office manager and personal assistant to the Managing Director. She had been asked to attend meetings regarding the complainant, and to take notes and the actions arising. She had also met with the complainant to discuss these issues. This was not recorded as she has a great number of meetings with staff. If there is ever an issue, she offers to speak with the Managing Director or the General Manager about the issue.

In cross-examination, it was put to the Office Manager that her role had been that of a note-taker; she replied that this was her understanding. She had not, however, taken a minute of the meeting of the 22^nd January 2016 as this had been about the contract. In respect of her comment in the letter of the 27^th January 2016 about understanding the complainant’s reasons, she replied that there had been two positive meetings between the complainant, the Managing Director and the General Manager regarding the construction unit role. She did not think that it had been agreed to pay the complainant for four weeks.

The External Accountant gave evidence. She had been asked to provide tax advice and to introduce procedures. She had some awareness of differences in the office but had not been aware of how serious they were. The Office Manager had told her that the complainant was to go on Garden Leave and that she could not issue a P45 until she had the full information. She said that an employee on Garden Leave was obliged to be available as they remained employees. The complainant had been paid all her due entitlements on the 29^th February 2016. In the remaining four weeks of her employment, the complainant was expected to attend meetings. The Managing Director gave her the instruction not to pay the complainant her salary for the remaining four weeks. She said that her letters to the complainant had been matter of fact and that they had not contained a threat. The External Accountant did not accept that her email to the complainant of the 22^nd February 2016 had in reality related to the four weeks’ pay due to the complainant, even though the email refers to her P45; she rejected this, stating that she required the date for the P45. While she could not remember the full details of the conversation, they had discussed the issues of the complainant’s P45 and the Garden Leave. She did not accept that the letter of the 29^th February 2016 was threatening in nature and that it was obvious that a breach of the complainant’s obligations had taken place. She had seen the emails exchanged between the respondent and the complainant prior to writing this letter.

In closing submissions, the respondent submitted that it had acted more than reasonably in addressing the issues raised by the complainant, in particular at the meetings attended by the General Manager. It was not the case that the complainant had been offered a demotion. There had been no change in title or salary. The General Manager had sought to console and support the complainant. This included ending the one-to-one meetings. The complainant had performed well and the respondent had wanted to keep her. The respondent had asked the complainant to withdraw her resignation and alternatives had been offered to her. The complainant had not entertained alternative roles and the respondent had been more than reasonable. The complainant had not even taken the weekend to consider her position. Issues seemed to have blown up following the meeting of the 5^th February 2016, including in relation to the mobile phone and laptop. The respondent submitted that the complainant had been placed on Garden Leave and that it was perfectly reasonable for her not to be paid for this period.

Findings and Conclusions:

There are two complaints to be addressed. One relates to a claim of constructive dismissal pursuant to the Unfair Dismissals Acts and a second for notice pay pursuant to the Payment of Wages Act.

CA-00004113-001

In respect of the claim of unfair dismissal, the definitions section of the Unfair Dismissals Acts (at section 1(b)) provides in relation to the definition of constructive dismissal:

“dismissal”, in relation to an employee, means—

“(b) the 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 notice of the termination to the employer.”

The classic formulation of the legal test in respect of constructive dismissal was provided by the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In respect of repudiation of contract, the Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test for whether employer conduct had breached the implied term of mutual trust and confidence in every contract of employment was an objective one. Finnegan J. held:

“1. The test is objective.2. The test requires that the conduct of both employer and employee be considered.3. The conduct of the parties as a whole and the accumulative effect must be looked at.4. 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.”

The Employment Appeals Tribunal in Conway v Ulster Bank (UD 474/1981) (as opened by the parties) held as follows: “We do not hold the view that the transfer of the appellant [employee] was, of itself, a repudiation of the contract of employment and that the resignation was merely an acknowledgement of an acceptance of this. The transfer may have been misused in this case buts its use did not demonstrate that the respondent no longer intended to be bound by the contract of employment, nor did the fact of transfer so alter the employment as to make it a thing radically different from what it was before the transfer. Transferability was part of the contract and could properly and fairly be used to the same effect in different circumstances. The termination of the employment would, we feel, fail on a contractual test to be a constructive dismissal.”

In respect of the legal test relating to constructive dismissal, the complainant relies on Western Excavating ECC Ltd v Sharp and submits that the reasonableness test is more appropriate in this case. She refers to Conway v Ulster Bank and Smith v RSA Insurance Ireland Ltd (UD1673/13) as authorities that there are circumstances where an employee does not have to exhaust all internal grievance procedures prior to resigning. The respondent also relies on the Conway v Ulster Bank, where the Employment Appeals Tribunal held that the complainant had not acted reasonably in resigning. It also relies on Higgins v Donnelly Mirrors (UD 104/1979) and on Flaherty v College Freight Ltd [2009] 6 JEIC 2901, where the Employment Appeals Tribunal held that a less than harmonious working relationship was not such as to justify a claim of constructive dismissal.

In respect of this claim, I make the following findings and comments. I note that the respondent grievance procedure, exhibited at page 29 of the employee handbook, provides that the employee can raise grievances either through informal discussion or through the formal process. It states “if you wish to raise a formal grievance you should normally do so in writing from the outset.” The policy asks the employee to explain fully the nature and extent of their grievance and that they will be invited to an investigation meeting. A decision will be made within 10 days and the employee retains a right of appeal. The appeal is to be heard by the Deputy MD at a separate meeting. Furthermore, the grievance procedure provides that issues of “personal harassment” should be raised via a separate procedure. This is provided by the respondent in a detailed personal harassment policy and procedure. In its introduction, the policy refers to harassment and victimisation on the equality grounds. It also provides examples of personal harassment and an informal and formal procedure to address complaints. The formal procedure requires that a formal written complaint be made to the Office Manager, containing the details of the allegation. The respondent will then separate the complainant from the harasser, for example transferring the alleged harasser to another section. The complaint will be investigated and a draft report produced within 10 days. Both the complainant and the alleged harasser have the right to comment on the draft and there is a later right of appeal.

Front and centre of this complaint is the complainant’s dissatisfaction with how she was treated by a colleague, who is referred to in this report as the Supervisor. The complainant gave evidence of difficult interactions with this colleague, which made the complainant upset to such an extent that she was in tears at meetings with the Managing Director and others. It is striking that the respondent has not made a finding of fact as to whether the behaviour complained of occurred. It is accepted by the respondent that the complainant raised complaints about the Supervisor’s behaviour; this is evident in the agreement by the respondent that the complainant would be accompanied to any meeting with the Supervisor. This paints the picture of a workplace on edge, where management must attend routine meetings of more junior members of staff. It begs the question of why the issue of the Supervisor’s behavior has not been addressed. Furthermore, the respondent acknowledged that another staff member had complained of the Supervisor’s behaviour. It is not sustainable that management be required to police routine meetings of junior staff and this is evidenced in the proposal in January 2016 to transfer the complainant to the construction unit.

The complainant asserts that her role would have reduced in the construction unit as she did not have the qualifications to play the same lead role as she did in store fit-outs. The respondent pointed to the fact that her title would stay the same and that she would receive the same salary. What is striking in this case is that the complainant persistently raised her treatment at the hands of a colleague; the respondent does not deny that the behaviour took place, but instead of investigating the issue or making findings in relation to it, proposed to transfer the complainant to a different role. This seems to contradict the terms of the respondent’s own “personal harassment” policy where it is the alleged harasser who is transferred or suspended. These events appear to have had no impact on the Supervisor; she seems to have been able to work without impediment or any investigation into the complaints made against her. Furthermore, given the persistent nature of the issues raised by the complainant, this is a matter that should have been addressed by the respondent via its grievance procedure. The matter, however, was not sent to investigation by the respondent. There is a conflict in evidence between the parties of what complaints were formally put to the respondent. The complainant asserts that her grievances were recorded in work emails and also held on a HR tool. She says that she was unable to retrieve these via a data access request. The respondent denies that the complainant formally complained of these issues. Taking the respondent’s case at its height, I note that the grievance policy does not make it mandatory for a grievance to be in writing, and even if this were the case, the respondent ought to have advised the complainant to complain in writing after she had made so many verbal complaints. In passing and if it fell to resolve this conflict between the parties, I note that the respondent has not supplied any of the emails sent by the complainant or the records it retains on the HR tool to show what issues the complainant raised or did not raise at the material time.

A further aspect of this case is that the complainant went to “the top” on many occasions. She reported her negative interactions with the Supervisor to the Managing Director, for example when the complainant was told by the Supervisor she was to lose her major client. The Managing Director intervened and reassured the complainant that this was not the case. The complainant retained this client to the end of her employment and this was one of the clients she emailed on the 3^rd February 2016. The complainant asserts that the Managing Director told her that the offer to move to the construction unit was made on a “take it or leave it” basis; the Managing Director did not attend the adjudication to give contradictory evidence. It follows that the outcome of all the complainant’s complaints regarding the Supervisor’s behaviour was that the complainant was to be moved out. The outcome was not that the complaints would be investigated or that action would be taken regarding the Supervisor, even on an interim basis. Instead, the outcome was that the complainant was to be moved and it was her choice to “take it or leave it”.

Taking these findings together, I find that the claim of unfair dismissal is well-founded. I find that the failure of the respondent to advance the issues raised by the complainant via its own grievance or harassment procedures, and its response of proposing to move the complainant from her role, amount to a breach of the implied term of trust and confidence in the complainant’s contract of employment. Applying the test in Berber v Dunnes Stores, I note that the complainant sought to raise her concerns about the Supervisor’s behaviour and that the respondent responded in some measure by agreeing to accompany the complainant to one-to-one meetings with the Supervisor. The fact that this was not a sustainable intervention is evidenced by the respondent’s later decision to propose to move the complainant from her role. The respondent never took the step of investigating the complaints or of making findings as to their validity. Looking at the case objectively, this failure, and the consequent proposal to move her to another role, amounted to a breach of mutual trust and confidence to such an extent that the complainant was entitled to consider herself to have been dismissed. While the complainant was asked to reconsider her resignation, there was no deviation on the respondent’s part from the “take it or leave it” basis of her move to the construction unit. The issues she raised would not be addressed and she would change role to a post to which the complainant considered she was less qualified to lead. It follows that the complaint succeeds.

In assessing redress, I note that the complainant has not been able to find alternative employment and submitted evidence of extensive efforts to find such employment. She presented documentation showing 71 applications for a wide variety of jobs. She is also studying at night. I note that while the complainant had worked for the respondent for slightly over one year, no issue was raised regarding her performance or her contribution to the respondent. Taking these matters into account and the requirement to make an award that is just and equitable in the circumstances, I make an award of €26,244 pursuant to the Unfair Dismissals Acts.

CA-00004113-002

In respect of the claim pursuant to the Payment of Wages Act, I make the following comments and findings. The claim relates to notice pay of four weeks, an amount of €2,692 (calculated according to the gross monthly amount). The respondent asserts that it was not obliged to pay the complainant as she had violated her contract of employment.

Section 5 of the Payment of Wages Act provides for the lawful deductions that may be made to an employee’s pay. The relevant provisions of section 5 are:

“5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—...(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or(c) in the case of a deduction, the employee has given his prior consent in writing to it.(2) An employer shall not make a deduction from the wages of an employee in respect of—(a) any act or omission of the employee, or…(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,(II) in any other case, notice in writing of the existence and effect of the term,and(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, …(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.”

I note that the respondent Employee Handbook provides that an employee on Garden Leave shall continue to receive their full salary. The Statement of Particulars of Employment provided to the complainant contained detailed Garden Leave provisions. Section 18 includes the provision “the Company reserves the right to deduct from your final salary any or all outstanding monies due to the Company or the equivalent monetary value of damage to or loss of Company property, for which you are held responsible.”

The respondent was dissatisfied that the complainant declined to attend a meeting scheduled for the 15^th February 2016. It also took issue with her emails to clients of the 3^rd February 2016 where she disclosed a personal email address. It is clear from section 5 of the Payment of Wages Act and the above-referenced extracts of the Employee Handbook and the Statement of Particulars that the respondent is entitled to deduct wages due to an employee where there is loss or damage arising from an act or omission of the employee, having complied with the notice and other requirements of section 5. While the respondent was dissatisfied with certain acts of the complainant, it did not meet the requirements of section 5 and nor did it point to loss or damage it incurred. I also note that the clear reasons presented by the complainant for not attending any further meeting after what she described as the “humiliation” of the meeting of the 5^th February 2016. While the complainant emailed respondent clients on the 3^rd February 2016, I note the tone and content of the email, for example her closing sentence, highlighted in the email in bold “Finally, if you are looking for me, to know how I’m doing, where I am, what will be my next life project, please write to [a gmail address]. I’ll be happy to have your news!” In later replying emails sent to the complainant, the respondent referred to the Restrictive Covenant provisions of the complainant’s Statement of Particulars. There is, however, no evidence of any attempt by the complainant to engage with the clients she had previously dealt with on behalf of the respondent. It is clear that the email is a cheery good-bye from a departing employee to former clients; there is no evidence of anything more sinister or any step by the complainant to interfere with the relationship between these clients and the respondent. The final comment to make is that whatever issues the respondent had with the complainant regarding her refusal to attend meetings and for sending the emails, it was for the respondent to invoke the disciplinary policy to address these issues and if deemed well-founded, to impose the appropriate sanction. The respondent did not take this course of action and simply withheld the four weeks’ pay due to the complainant. For the reasons outlined above, I find that the claim made pursuant to the Payment of Wages Act is well-founded and I award the complainant four weeks’ pay, i.e. the amount of €2,692.

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 Acts.

Section 41 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.

CA-00004113-001

For the reasons outlined above, I find that the complaint made pursuant to the Unfair Dismissal Acts is well-founded and the respondent shall pay to the complainant the amount of €26,244.

CA-00004113-002

For the reasons outlined above, I find that the complaint made pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant the amount of €2,692.

Dated:   07^th July 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Constructive dismissal

Breach of mutual trust and confidence

Berber v Dunnes Stores [2009] 20 E.L.R. 61

Payment of Wages Act

Notice pay