UDD1718

This is an appeal by Torriam Hotel operating Company Limited (the Appellant) against a decision of an Adjudication Officer on a complaint made by Ms Jacqueline Byrne (the Complainant) that she had been unfairly dismissed by the Appellant, her former employer.

The Appellant did not, for stated reasons, attend the hearing of the Adjudication Officer. In a decision dated 9^thSeptember 2016 the Adjudication Officer found that the Claimant had been unfairly dismissed and made an award of €13,500 as redress for the dismissal.

The Appellant was employed from 8^thOctober 2013 until the termination of her employment on 26^thJune 2015.

The fact of dismissal is in dispute.

Summary position of the Claimant

The Claimant contended that she was initially employed on a casual contract basis but that from March 2014 she was informed and led to believe by the Appellant that she would be given a permanent, full time contract. She stated in evidence to the Court that she was at no time offered a full time permanent contract and that in June 2015 the situation had reached a crisis point such that the Claimant was unable to continue working for the Appellant.

The Claimant submitted that at her ‘five month review’ following an initial probationary period she was rated as excellent by her manager and recommended for a full time permanent position. She submitted that, as a result, she was at all times following her ‘five month review’ led to believe that her status as a casual employee was a temporary one.

The Claimant submitted that following her initial period of employment she undertook health and safety training in return for which she was to receive a payment of €1,000 per annum from the Appellant but that payment was not forthcoming in a timely manner.

The Claimant submitted that her line manager, Mr EK, was absent through illness for a period in early 2015 and that he had asked her to ‘take care of things’ while he was absent. She submitted that as a result of this direct request she had assumed greater responsibilities at the request of her direct line manager.

The Claimant submitted in evidence that on the return to work of Mr EK in May 2015 she once again asked him whether she would be put on a full time permanent contract. She stated in evidence that he advised her that she would have to wait for the loss prevention roster to be restructured.

The Claimant stated in evidence that she had at no time been offered a full time permanent contract of employment.

The Claimant submitted that throughout her period of employment she had worked bank holidays and had been advised that she would be entitled to take time off in lieu in respect of such working. The Claimant submitted that in May 2015 her line manager, Mr EK, clarified to her that she was not entitled to time off in respect of the Bank Holidays she had worked and that this clarification had caused her stress.

The Claimant submitted in evidence that she had raised an issue with the HR Manager of the Appellant at a meeting in early June 2015 as regards a failure to make the agreed payment to her in respect of training of staff in health and safety matters. She stated in evidence that she was advised that payment would be made within two days of the meeting but payment was not received until later that month. She stated in evidence that the HR Manager was absent following her meeting with her but that she, the Claimant, had raised the matter with the Financial Director of the Appellant subsequently in order to ensure payment which was received in June 2015.

The Claimant submitted that she had mailed the Appellant on 26^thJune 2015 advising that she could not continue in employment. She submitted that she had not received a reply to that mail. She stated in evidence that she had received a mail purporting to have been sent to a ‘g-mail’ address on 30^thJune 2015 only upon a subsequent data access request being made by her legal adviser.

The Claimant submitted that the Appellant’s failure to address her concerns in relation to discrepancies in her pay and her role within the company are significant breaches which go to the root of the contract and that therefore the Claimant was entitled to regard herself as discharged from her contract of employment. The Claimant also submitted that the conduct of the Appellant in failing to address the Claimant’s many issues and concerns over a prolonged period of time had the effect of undermining the duty of mutual trust and confidence which lies at the root of the contract of employment. The Claimant submitted that this was conduct which was so unreasonable that the Claimant could not be expected to tolerate it any further.

The Claimant stated in evidence that she was fully aware of the grievance procedure of the Appellant. She stated that she had raised issues with her manager, Mr EK, on a number of occasions but that he had failed to respond within five days as required by the grievance procedure. She acknowledged in evidence that she had not, in raising these matters with her line manager Mr EK on a number of occasions, advised him that she was raising a formal grievance in accordance with the grievance procedure of the Appellant. She submitted and stated in evidence that the special nature of her loss prevention role was such as to mean that it did not lend itself to the taking of formal grievance proceedings. She also submitted that she could not reasonably have been expected to initiate such proceedings after 26^thJune 2015, the date of her letter to the Appellant advising that she could no longer continue in employment.

Summary of the position of the Appellant

The Appellant submitted that the Claimant had been employed as a casual loss prevention officer on 8^thOctober 2013.The Claimant was, according to the Appellant, provided with company orientation which included instruction on the Appellant’s grievance procedures. The Appellant submitted that the Claimant had signed for receipt and understanding of the employee handbook including the Appellant’s grievance procedures. The Appellant submitted that three performance reviews were conducted with the Claimant during her employment and that each of these reviews attested to the Claimant being a ‘good employee’.

The Appellant submitted that the Claimant’s rate of pay was increased by 20% after five months service and additionally, in the same month, she attended a paid occupational first aid course so that she could carry out manual handling training. The attainment of this certification and delivery of training arising therefrom was remunerated with an additional payment of €1,000 per annum.

The Appellant submitted that in early 2015 the Claimant’s manager became ill and was absent from work for approximately six weeks. The Appellant submitted that no request was made to the Claimant to carry out the manager’s role during his absence but nevertheless the Appellant wrote to the Claimant in April 2015 thanking her for her work.

The Appellant submitted that the Claimant was employed on a ‘casual’ contract and that she worked for 48 hours per week and was paid €12.00 per hour. The Appellant submitted that the Claimant had stated that she required this level of income to maintain her mortgage payment. The Appellant submitted that the Claimant had, on a number of occasions during her employment, sought a permanent full time contract as opposed to the ‘casual’ contract applying to her. The Appellant submitted that the Claimant, on 5^thJune 2015 at a meeting with the Appellant’s HR manager, again sought such a contract. The Appellant stated to the Court, including in evidence from the HR manager of the Appellant (Ms B), that a permanent full time contract in the employment was, without exception, remunerated by a salary at the rate of €10.00 per hour and entailed a working week of 39 hours with all additional hours worked being ‘banked’ as ‘time off in lieu’. The Appellant submitted that the ‘casual’ contract was, in contrast, remunerated for every hour worked.

The Claimant’s line manager, Mr EK, stated in evidence that he had never advised the Claimant that she could be offered a full-time permanent contract of employment on the basis that her remuneration level would be equal to that which she received as a casual employee working a consistent 48 hours per week. Mr EK stated in evidence that his consistent advice to the Claimant was that she could take up a full time permanent contract of employment but that she would be paid for 39 hours per week only with all additional hours being ‘banked’ to be taken as time off in lieu.

Ms B stated in evidence that she met the Claimant at her request on 5^thJune 2015. At that time the Claimant raised matters related to a delay in the payment of the agreed amount of €1,000 per annum in respect of health and safety certification and training delivery and also as regards a full time permanent contract of employment. Ms B stated in evidence that at that meeting Ms B undertook to ensure that any outstanding payment in respect of health and safety certification and training delivery would be made in June 2015. Ms B also stated that the Claimant had sought a full time permanent contract of employment which would carry a pay rate so as to ensure that she would receive remuneration in respect of that contract equal to the earning level enjoyed by her in respect of consistent 48 hour per week working under her ‘casual’ contract. Ms B stated in evidence that the Claimant was advised that full time permanent contracts of employment operated on a 39 hour week basis with additional hours ‘banked’ to be taken as time off in lieu. She stated in evidence that the Claimant was advised at that meeting that it would not be possible to issue a full time permanent contract at the rate of pay required to provide the earning level sought by the Claimant. She stated in evidence that the Claimant was assured that she would be provided with a full time permanent contract if she chose to accept same in the terms available.

Ms B stated that an e-mail was received from the Claimant on 26^thJune 2016 stating that the Claimant could not continue her employment with the Appellant. She stated that the issues specified by the Claimant as having led her to conclude that she should resign from her employment included stress and insecurity as well as issues as regards Bank holiday working, holidays, Shift patterns and a ‘full time contract’.

Ms B stated in evidence that all arrangements as regards the Claimant’s employment including public holiday working, operation of her ‘casual contract’, public holiday working and annual leave were consistently applied throughout her employment. The Appellant contended that the Claimant had worked under consistent arrangements throughout her employment and that she had consistently been advised that a full time permanent contract would, if taken up by the Claimant, be on the basis of 39 hours worked per week.

Ms b stated in evidence that in the five years prior to the making of this complaint no request for permanent employment from a casual employee was ever refused by the Appellant.

Ms B stated in evidence that the Claimant’s mail of 26^thJune 2015 was replied to on 30^thJune 2015 but acknowledged that the reply had issued in error to a ‘g-mail’ account as distinct from a ‘y-mail’ account which the Claimant had used in her mail of 26^thJune.

Ms b stated in evidence that the Claimant was fully aware of the Appellant’s grievance procedure but had never employed that procedure to raise the issues which she stated in her e-mail had led to her concluding that she must terminate her employment. The Appellant submitted that it was entitled to the opportunity to address any grievance of the Claimant before she took the step of terminating her employment but that no such opportunity was given to the Appellant.

The Appellant submitted that the Claimant met with Ms B on 5^thJune 2015 and that the matters raised on that occasion were reasonably dealt with. The Appellant submitted that the issue of delay in payment of the agreed payment in respect of health and safety certification and training delivery was disposed of including by payment of all due amounts before receipt of the letter of 26^thJune 2015. The Appellant further submitted that at all times the Claimant was advised and aware that the only basis for a permanent full time contract with the Appellant was a 39 hour per week contract with any additional hours worked being ‘ banked’ to be taken as time off in lieu. The Appellant submitted that this matter was clarified again to the Claimant at the meeting of 5^thJune 2015.

The Law

Section (1) of the Act defines constructive dismissal in the following terms

• (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, or

The question for the Court to decide is whether, 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 her contract of employment without giving prior notice of the termination to the employer.

The Appellant in this case has submitted that there is no arrangement in place in the company to offer permanent full time staff a contract of employment other than on the basis of payment for 39 hours per week with all other hours worked being ‘banked’ to be taken as time off in lieu. The Appellant has submitted that it could not, in those circumstances, have ever undertaken to the Claimant that there was a prospect that the earning level she generated as a ‘casual’ worker consistently working 48 hours per week could be achieved in her role if that role were to be carried out on a permanent full time permanent contract of employment.

The Claimant has submitted that she was, at all times following her initial five month review, led to believe that her casual status was a temporary one and that she would be made a permanent member of staff.

The Appellant has submitted that all casual staff who sought to be made permanent have been accommodated when they made such requests over the five years prior to the hearing of the Court.

The evidence of the Claimant and that of her line manager, Mr EK, is contradictory in the matter of whether she was led to believe that she could be made permanent and full time with no reduction in earnings. Mr EK stated in evidence that he could not and did not at any time give that indication to the Claimant. She stated in evidence that she had repeatedly sought permanent status and had been led to believe that this would occur.

The Court accepts the evidence of the HR Manager of the Appellant, Ms B, that all permanent full-time staff are employed on 39 hour per week contracts and that no possibility existed that the Claimant could receive such a contract and achieve a rate of pay such as to secure earnings equal to her earnings as a ‘casual’ worker working 48 hours per week consistently. The Court accepts that the Appellant was so advised at a meeting in early June 2015.

Additionally, the Court prefers the evidence of Mr EK that he at no time between her initial five month review and the termination of her employment led the Claimant to believe that she could achieve permanent full-time status with no loss of earnings

The Claimant has identified three issues which created the situation whereby she had no choice but to terminate her employment. Those issues were her wish to be appointed as a full time permanent employee, her concern that a payment which was due to her was overdue for payment and a concern as regards public holiday working. These matters are of a nature which the Court believes could reasonably have been raised and addressed through the Appellant’s grievance procedure. The Claimant chose not to raise any of these issues in this manner. She has submitted that, given the nature of her role, the grievance procedure of the Appellant could not appropriately have been initiated by her.

The Court cannot accept this proposition. The grievance procedure makes no distinction between staff of the Appellant in terms of the application or coverage of the procedure. There was at all times an opportunity for the Claimant to raise any issue she chose through the grievance procedure and she was fully aware of that grievance procedure.

The Court notes that the Claimant raised two of the issues giving rise to concern at a meeting with Ms B in early June 2015. The Court notes that one of those issues had been resolved before she decided to terminate her employment on 26^thJune 2015. The Court further accepts that Ms B made clear to the Claimant the Appellant’s position as regards access to a full time permanent contract at that meeting.

In all of the circumstances the Court has concluded that no behaviour of the Appellant has been shown to be of such a nature as to undermine the basic tenets of the employment relationship and no behaviour of the Appellant could be seen by the Court as to be so unreasonable as to mean that the Claimant could not reasonably be expected to continue in her employment. The Court does not accept the assertion that the Claimant, because of the nature of her role, was excluded or in any way inhibited from accessing the grievance procedure of the Appellant. She failed to initiate any grievance in accordance with that procedure and deprived the Appellant of the opportunity to address any concerns she had through the established procedures which were in place for just such a purpose.

In all of the circumstances the Court finds that the termination of the Claimant’s employment was not a dismissal within the meaning of the Act and that that she was not unfairly dismissed.

Determination.

For the reasons set out above the Court determines that the Claimant was not unfairly dismissed and the decision of the Adjudication Officer is accordingly set aside.

Signed on behalf of the Labour Court



Kevin Foley
JD______________________
8 May 2017Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.