ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003820

Complaint(s):

Date of Adjudication Hearing: 17/05/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room G.05 Lansdowne House

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 commenced employment in a shop in 2005. In 2008 she transferred to a sister shop, her employment ended on 7^th March 2016. Her gross hourly pay at this time was €10.00. A complaint, under Section 8 of the Unfair Dismissals Act 1977, was received by the Workplace Relations Commission on 20^th June 2016.

A hearing of the complaint was held on 18^th January 2017, in the absence of the Respondent. Following application from the Respondent it was decided to re-hear the case and a hearing took place on 17^th May 2017. Compensation was the agreed redress. The fact of dismissal is in dispute.

Summary of Complainant’s Case:

The Complainant submitted a written submission. In it the Complainant submits that the shop she had worked in for eight years was taken over by the Respondent in or about 19^th February 2016 and that immediately upon taking over the new owner changed many things including the imposition of "split shifts" which he knew would cause great hardship on the Complainant due to her family obligations. He also reduced her hours without consent or notice and introduced sudden and mandatory changes to scheduling such that on a number of occasions the Complainant was forced to cease what she was doing and come to work, which was particularly burdensome given her family commitments. When at work, a shift could be ended early without notice and shifts were changed or cancelled with sometimes less than a days' notice. The Complainant submitted that this made it very difficult for her as a young mother.

Also the Complainant put forward that at the time of her alleged dismissal she was about to be transferred to another branch against her will and contrary to her contract of employment.

The Complainant also submitted that she had pre-booked a family holiday of which her duty manager was aware but when she informed the Respondent he was unhappy and said that he would have to consider her job. When the Complainant returned from her holidays she learnt that her name was not on the roster. When she enquired about this she alleges she was told that she had no more hours.

In evidence the Complainant stated that she had she worked the 4.00pm to 10.00pm shift but was flexible if required. When the Respondent took over the shop things changed; she was called to work mornings and sometimes had to come back in the evening, her hours were also cut.

The Complainant stated that when she told the Respondent about her holiday plans he was very annoyed and told her she could not go. When she came back from holidays and checked the roster she discovered she was not on it, she checked at the end of the week and was still not on it. The Complainant contends that this demonstrated that she had been dismissed.

In answers to questions from the Respondent the Complainant agreed that her rostered hours were normally 4.00pm to 10.00pm and that when she was called in to cover other hours it was due to the unavailability of other members of staff because of sickness. She stated that the Respondent had told her that she could not take her holidays although she did get them. The Complainant agreed that she had not contacted the Respondent about her name not being on the roster because his number had changed. The Complainant did not seek clarification from the Respondent on the matter as she normally dealt with the shop manager.

The Complainant denied that she had called the Respondent on the phone and told him she would not be returning to the shop after taking her holidays. She also denied saying that she had started working in another place with her own business. When asked why she had given no notice the Complainant said that it was because her name had been cut from the roster.

In further oral evidence the Complainant said that she and her husband had a business. She also re-iterated that she had not called the Respondent to tell him she was leaving.

Summary of Respondent’s Case:

The Respondent stated that he did not dismiss the Complainant rather she had resigned of her own volition when she rang him and told him she was not going to return after her holidays.

The Respondent stated that there had been changes to the as it was unbalanced and needed to be changed. He had asked people to cover but that this was normal procedure in shops.

In answer to questions from the Complainant the Respondent stated that the reason the Complainant was removed from the roster was because she had called him to tell him she had a job elsewhere and was resigning.

In further questioning the Respondent again stated that he had received a phone call from the Complainant saying; she was not returning to work as she had a business in south county Dublin and going to work there.

Findings and Conclusions:

The Complainant contends that the behaviour of the Respondent in changing the rosters, threatening to move the Complainant to another shop and his reaction to her taking her pre-booked holidays was so unreasonable as to justify her terminating her employment with the Respondent. The Respondent denies he told the Complainant she could not take her holidays, that changes to the roster were necessary due to extenuating circumstances and that in fact she called him to tell him she was moving on to work in her own business.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“the termination by the employee of his/hers contract of employment with the employer whether prior notice of the termination was or was not given to the employer in the 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 cases such as this the burden lies on the Complainant to prove that it was reasonable for her to terminate her own employment due to a significant breach by the employer of a fundamental term of her employment contract or because of the nature and extent of the employer’s conduct and the circumstances in which the employee was expected to work.

Based on her evidence I find that the Complainant has not demonstrated that there was any breach of her employment contract nor that her work circumstances or situation merited a decision to walk out of her employment.

There is a conflict of evidence in relation to a phone call; the Respondent says the Complainant called him to tell him she was moving on to work in her own business, the Complainant says that no such phone call ever took place. In this matter I prefer the evidence of the Respondent. The Complainant was not forced to leave, it was her decision and was not based on any unreasonable action by the Respondent.

Further, prior to an involuntary resignation/departure an employee must exhaust all reasonable attempts to resolve their complainants and grievances with their employer. As an initial step an employee must inform their employer of the issues causing those complainants and grievances. Making the employer aware of them allows the Respondent to address those concerns. There is no evidence that this initial step was undertaken in any real way by the Complainant prior to her departure, despite the existence of a formal Grievance Policy, known to the Complainant.

The Complainant's contention that she was forced to leave or that in the circumstances it was reasonable for her to leave does not stand up to scrutiny.

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.

Having carefully considered all the evidence I find that the Complainant was not constructively dismissed. Accordingly, the claim under the Unfair Dismissals Acts, fails.

Dated:   06/07/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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