Complainant

Respondent

Anonymised Parties

{A Night Shift Manager}

{A Retail Supermarket}

Representatives

Neil Cosgrave, Cosgrave Solicitors

Niamh Ní Cheallaigh,   IBEC

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-00006756-001

02/09/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00006756-002

02/09/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00006756-003

02/09/2016

The complainant was employed by the Respondent as a Night   Shift Manager from September 2008 until 17^th May 2016. His gross   annual salary was €43,962.00

The complainant’s position is that he was left with no   option but to resign from his position with the Respondent. He submitted his   resignation by email on 17^th May 2016. The complainant contends   that following his transfer to another store of the Respondent in March 2014   he had been the victim of a number of threats and a number of physical   assaults in the course of his employment. He contends that he raised a number   of initial grievances between April 2014 and December 2014 which were either   inadequately investigated or completely ignored by Management. The   complainant contends that he was absent from work on sick leave as a result   of work related stress from 1^st December 2014 until his   resignation in May 2016.

The complainant contends that he had raised a number of grievances   in the months leading up to December 2014 and that when he met with   Management on 27^th January 2015 to discuss his concerns he was   informed that eight grievances had been lodged against him. The complainant’s   position is that he was unaware that there had been any grievances lodged   against him as he had not been informed of any specific details. The   complainant stated that he was made to feel that he was the problem despite   the serious threats and assaults that he had been subjected to while working   in the other store. At this meeting the complainant contends he raised   further grievances in relation to his treatment by the Respondent.

The complainant contends that initially the Respondent   would only commence an investigation into the grievances made by him if he   were to return to work. He also stated that a number of email exchanges and   welfare meetings that took place between April and October 2015 assured him   that the investigation process was up and running and that he would be   contacted in that regard.

The complainant contends that he was informed at a meeting   on 22^nd October 2015 that the investigation process had concluded   and he would be contacted in relation to the outcome. He stated that he was   told he could appeal the findings if he wished. By letter dated 2^nd December 2015   the complainant was informed of the Respondent’s investigation and decision   in relation to the grievances. The complainant contends that the letter   stated that given the passage of time he did not have the option to appeal   his initial grievances. He accepted that he was given the opportunity to   appeal the findings of the current investigation which he did.

The complainant also pointed out that, despite his   expectations, he was not contacted by an investigation officer at any time during   the process.

The complainant contends that the appeal decision which   issued by letter of 19^th February 2016 provided that notwithstanding   the procedural errors accepted by management in relation to the option to   appeal previous grievances, he should accept the offer of an alternative work   location and return to work.

The complainant contends that the Respondent’s failure to   allow him the opportunity to appeal his grievances denied him fair procedures   . He contends that his confidence in the integrity of the process was eroded   to such an extent that he could not be reasonably expected to return to work.

The complainant is seeking compensation in relation to his   Constructive Unfair Dismissal.

Preliminary matter:

The Respondent contends that the worker is still an   employee and therefore no jurisdiction exists to refer a complaint under the   Unfair Dismissal Acts, 1977-2015. The Respondent’s position is that it did   not accept the worker’s resignation as it believes the issues in dispute can   be resolved and the worker can be facilitated with a return to work.

Substantive matter:

In relation to the specifics of the compliant, the   Respondent contends that it arranged a welfare meeting with the complainant   on 7^th January 2015. The Respondent’s main aim at this meeting was   to assist the complainant in returning to work and to gain an understanding   in relation to the reasons for his absence on sick leave since December 2014.   The Respondent states that it subsequently arranged an investigation meeting   in relation to the grievances raised by the complainant which took place on   27^th January 2015. The Respondent contends that the complainant   was then informed of grievances that were made against him but he claimed he   was unaware of these complaints.

The Respondent contends that it went to great efforts to   find a suitable alternative location for the complainant and that it   confirmed to him that a thorough investigation would be carried out once he   had returned to work.

The Respondent stated that it notified the complainant at   a meeting in August 2015 that, although he had not returned to work, it began   its investigation into the issues raised by him at the meeting of 27^th   January 2015. The outcome of the investigation process was notified to the   complainant on 2^nd December 2015 and was subsequently appealed. An   appeal hearing took place on 5^th February 2016 and findings issued   to the complainant on the 19^th February 2016.

The Respondent contends that the complainant has failed to   discharge the burden of proof that exists in claiming Constructive Unfair   Dismissal. In support of its position the respondent contends that the   complainant had failed to satisfy the established tests in relation to his   alleged constructive dismissal. In relation to the “contract test “the   Respondent contends that it did not breach the complainant’s contract of   employment, nor was any breach claimed. The Respondent cited the case of   Conway v Ulster Bank UD474/1981 in support of its position that there was no   breach of any term of the employment contract or organisational policies.

In relation to the “reasonableness test” the Respondent   contends that it acted reasonably at all times in processing the   complainant’s grievances but that he acted unreasonably in resigning. The   Respondent also stated that the complainant’s case cannot succeed as he   failed to exhaust all internal procedures prior to his resignation. The Respondent   cited McCormack v Dunnes Stores UD 1421/2008 in support of its position on   this issue.

Preliminary matter:

I do not accept the Respondent’s argument that no   dismissal occurred as it had not accepted the complainant’s resignation and   he remains an employee. The complainant addressed this issue at the hearing   and confirmed that he submitted his resignation by email dated 17^th   May 2016 and stands by his decision in that regard. On that basis I find that   I have jurisdiction to hear the substantive case.

Substantive matter:

This claim involves a series of issues, grievances and   various investigations and appeals. In   relation to the original grievances raised by the complainant in relation to   the assaults and threats that he was subjected to, I find that the Respondent   did not adequately investigate these issues in line with its own procedures.

The complainant supplied details of various grievances   that he raised between March and December 2014 involving various threats and   assaults. It was confirmed at the Adjudication hearing that some grievances   were in writing, some were communicated verbally and while some of them were   investigated to some degree, others were not investigated at all. It was   accepted by the Respondent that not all of the grievances were investigated   thoroughly and it was also confirmed that the claimant was not given the   opportunity to appeal the previous grievance findings.

By letter dated 2nd December 2015, the Respondent informed   the complainant that:

“We are a year down   the line and appealing the previous grievances is not an option at this   point. I can assure you that you should have been given the opportunity to   appeal at the time and the fact that   this did not happen will be discussed further with the management team…………”

I find that when the complainant appealed the findings of   2nd December 2015, he was informed that:

“there was a procedural error whereby you did not get the   opportunity to appeal the outcomes. I can confirm that this matter has been   further investigated with the management in the store and measures have been   put in place to ensure that this does not happen again.”

I find the Respondent’s position to be unsatisfactory. I   accept that there were a number of grievances raised but the complainant was   entitled to have each of the grievances dealt with to completion. I find that this was a serious failing on   the Respondent’s part.

I accept that the Respondent acted quickly and made every   effort to meet with the complainant and facilitate his return to work. At the   meeting arranged for 27th January 2015, a situation arose where the   complainant was informed about grievances that were made by others against   him and he also raised further grievances that the Respondent did investigate,   issued findings on and did provide an opportunity to appeal. The complainant did appeal and voiced his   dissatisfaction with the outcome on the basis that not all of his grievances   had been considered which denied him fair procedures.

I accept the complainant’s contention that the failure to   allow him to appeal the previous grievances in line with procedures, despite   numerous attempts and communications, resulted in a lack of confidence in the   process which ultimately led to his resignation.

The Law:

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals   Act, 1977 as follows:

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 burden of proof rests with the Complainant in   this case.

There are two tests in relation to proving that a   Constructive Dismissal has occurred. These are the “Contract Test” and the”   Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR   27 the “contract test” is summarised as follows:

“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.”

Addressing the   “reasonable test” the decision summarises the conduct of the employer as   follows:

“whether the employer 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.”

The requirement   to exhaust internal procedures is an essential element of succeeding in a   claim of constructive dismissal. This is set out in the case of Conway v   Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the   appellant did not act reasonably in resigning without first having   substantially utilised the grievance procedure to attempt to remedy her   complaints.”

Similarly in Travers v MBNA Ireland Ltd [UD720/2006] the Employment   Appeals Tribunal stated,

“We find that the claimant did not   exhaust the 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.”

In the instant case, I find that the Respondent did not   give the complainant an opportunity to appeal previous grievance findings and   in that context, did not act in compliance with the applicable terms and   conditions of the complainant’s employment.

I also find it unreasonable that the Respondent denied the   complainant the opportunity to exhaust internal procedures and then use it in   its defence that he had not done so.

Mitigation of Loss:

The complainant confirmed at the hearing that he attended   his doctor in December 2014 and was in receipt of Illness Benefit initially   and subsequently Basic Supplement Welfare payments. The complainant also   confirmed that he remains unfit for work.

I find that as the complainant has been unfit for work ,   therefore no loss has accrued under the Act. The maximum compensation payable   in circumstances where no loss has accrued is four weeks remuneration.

Having taken into account the   submissions of the parties and all of the information and evidence adduced at   the hearing of this complaint, I find that the complaint of constructive   unfair dismissal is well founded. I award the complainant 4 weeks gross pay   (€3,381.69) in compensation.

Constructive unfair dismissal, grievance procedures,   mitigation of loss, unfit for work.

This element of the complainant’s case relates to the   alleged non-payment of Annual Leave entitlements in accordance with the   Organisation of Working Time Act, 1997. The matter was not addressed by the Complainant   at the Adjudication hearing. Further information was sought and was submitted   to the Workplace Relations Commission (WRC) on 23^rd October 2017.

The complainant is seeking his Annual Leave entitlements   from 2^nd September 2015 until his resignation on 17^th   May 2016. The complainant contends that he has an annual leave entitlement of   14.87 days for the period in question.

The Respondent accepts that the complainant accrued annual   leave entitlements while on certified sick leave. The Respondent’s position,   however, is that the complainant can only avail of the entitlements on his   return to work or be paid for same if the employment is terminated during the   period of sick leave.

The complaint was submitted to the Workplace Relations   Commission (WRC) on 2^nd September 2016. The complainant sought an   extension of time in relation to the reference period for the calculation of   annual leave.

As the complaint was submitted in September 2016, I can   take account of all entitlements from the date of the claim back six months   to March 2016. This is within the 2015-2016 annual leave year. On that basis   I find there is no requirement to extend time back a further six months as   once within the relevant leave year the complainant retains the holiday   entitlement for the full year. Accordingly, I find that for the April 2015-   March 2016 leave year the complainant accrued 20 days’ statutory annual   leave.

I find that the complainant also accrued annual leave from   1^st April 2016 until his resignation on 17^th May 2016. During   that period of six weeks the complainant accrued 2.5 days’ annual leave.

The   complainant is entitled to be paid in relation to 22.5 days of annual leave   in respect of 1^st April 2015 – 17^th May 2016. The   Respondent should pay the complainant his annual leave entitlements within 42   days of this decision.

Issue 3. CA-00006756-003 Organisation of Working   Time Act, 1997.

Background:

Summary of Complainant’s   case:

Summary of Respondent’s   case:

Findings and Conclusions:

Decision:

Public holiday entitlement