Complainant

Respondent

Anonymised Parties

A Counter Assistant

A Chip Shop

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00007238-001

28/09/2016

The complainant had been employed in a chip shop on a   salary of €9.00 per hour for two shifts totaling ten hours per week.

An issue arose about a change in her shift requiring   weekend working which led to the termination of the employment.

Dismissal is disputed.

The complainant says she had a   conversation with the respondent in the course of which he advised her that   he wished her to carry out one of her shifts at the weekend.

She told him that she would   have to confer with her partner in respect of child-minding arrangements as   they had a child and he also worked anti-social hours.

She did so and it was not   possible for him to change so she advised the respondent that she could not   undertake the weekend shifts. She did not refuse to do them, it was a matter   of the cost of babysitters among other considerations.

Initially, the owner said to   her; ‘If you can’t do the shifts then   this has to be your last day.’ She received a later message from the   owner’s son amending this and offering a further week’s work but she declined   to accept this.

Weekend work is vital in the   respondent’s business.

It employs an average of five   staff and it is important that weekend working be evenly distributed between   them as a matter of fairness. The respondent had an obligation to ensure that   weekend working was rostered on a fair basis.

It tries to ensure that there   is an element of rotation in this. For the previous four years all employees   (except the complainant) worked at least one weekend shift, and she also had   worked weekends but sporadically.

Also, in approaching the matter   with the complainant they were aware that they would have great difficulty in   recruiting a person for a stand-alone shift of five hours on a weekend night.

The complainant was initially   employed on the basis of a roster which included weekends and she did work on   this basis.

Following an extended period of   sick leave from which she returned in February 2016 she was given weekday   only shifts in recognition of not having fully recovered from her illness.

In due course, she was returned   to some weekend working in February 2016 until it was observed that she was   swapping shifts and only worked about half of those rostered. She resumed   weekday only shifts in April 2016.

The complainant‘s account above   of the sequence of events is not disputed except in some detail.

The complainant refused to   undertake work at the weekend and therefore the respondent could not continue   to employ her on the basis of weekday only, or on the basis of one shift   only.

It was the complainant’s   decision to leave the business in the face of a reasonable request to her to   undertake a shift pattern which was normal in the business and which she had   worked before. She was offered the opportunity to extend her employment by a   week but declined.

The first issue is whether a   dismissal within the ambit of the Unfair Dismissals Act 1977 took place.

In that act dismissal is   defined as;

‘The termination by his employer of the   employee’s contract of employment with the employer whether prior notice of   the termination was or was not given to the employer. (Section 1(d))

In assessing this, the starting   point is the reasonableness of the respondent’s request that the complainant   undertake at least one weekend shift.

The sequence of events, while   somewhat confused in its detail is as follows;

The   respondent asked the complainant to undertake weekend shifts, in the course   of which he indicated that if she could not do so he could not continue to   employ her.

She   indicated that she could not undertake the weekend shifts.

According to   the respondent she then left the employment.

The general facts as set out   above in this regard were not disputed.

The complainant had been   initially recruited on the basis that weekend working would be required and she   had worked such shifts between the date she gave as her starting date (it was   disputed) of February 2009 and the start of her sick leave absence in October   2014.

I accept the respondent’s   submission that on return from sick leave she was accommodated by not being   asked to do weekends but in due course she was asked to do so and she did not   object.

In fact, she did not work very   many of them but the fact remains she did not dispute her rostering on that   basis. This is relevant to the reasonableness of her final decision not to   agree to work at weekends.

Turning to the events of   September 2016 it is clear that she was asked again to undertake weekend   duties. The evidence regarding the precise sequence of events was unclear in   detail.

The respondent witness stated   that the complainant said straight away and at the first mention of the   proposed change that she would not work it, she said she asked for time to   consult her partner. Either way she made it quite clear that she was not   prepared to work the weekend shift.

She alleges that the respondent   then said that he could not give her any more work on that basis. He does not   dispute this in principle; saying that it would be difficult to recruit a   person solely for a short (five hour) shift on a weekend night.

Therefore, the matter initially   turns on the reasonableness of his request to the complainant to share the   burden of a roster on the same basis as her co-workers and one she had worked   in the past, although quite clearly it had not really been suitable for her.

Whatever the precise sequence   of events she left him in no doubt that she would not do it. His response was   somewhat peremptory and efforts were made by the owner’s son to modify the   situation, but this was not acceptable to the complainant.

The central question is what   exactly occasioned the termination of the complainant’s employment. Was it an   action of the employer, or was it a decision of the complainant, and if the   latter was she justified in doing so?

And if it was the former, even   indirectly, was it of such an unreasonable nature as to effectively be a   termination of the employment in that it placed the complainant in a position   that she could not agree to the proposed change.

I find in favour of the   respondent in respect of all these questions. The request was a reasonable   one in all the circumstances and the complainant declined to agree to it.

I find that the complainant   made it clear that she would not work the revised roster and that such a   request to her was a reasonable one in the circumstances. It was not a new or   excessive imposition or an unreasonable one and she had worked it before.

A complicating factor which   tilts the matter somewhat against the respondent is the extent to which this   was delivered as an ultimatum initially, although efforts were made to   moderate it. I find that the complainant was told that if she did not agree   to the revised roster that ‘this would   have to be your last day’. The complainant had some seven years’ service   with the respondent and was entitled to better notice than this.

The question is does it ground a   case under the Unfair Dismissals Act in circumstances where the complainant clearly   and very definitely stated that she would not work the proposed roster (and   would not have done so regardless of how much notice or how much time she was   given to think about it).

So, while the peremptory nature   of the proposed change must be regarded as unacceptable I take into account   that some time after this the respondent contacted the complainant to offer  an extension of her tenure and she declined this.

Therefore, I do not find on   these facts that it turned the actions of the respondent into an unfair   dismissal. The complainant made it clear that she would not work a revised   roster and left her employment, and declined to return when offered the   opportunity to do so. Essentially, she quit her employment rather than work   the required roster, despite having done so before and understanding clearly   that is was a requirement of working in the business.

I find therefore that no   dismissal under the Unfair Dismissals Act 1977-2015 took place and that the   employment terminated as a result of the complainant’s decision not to work   established shifts which she had worked in the past and knew to be a feature   of the respondent’s business.

She was at pains to stress that   it was not an unwillingness to work the shifts but an inability to do so   because of her family commitments. This may be her view of it, but it does   not affect the key issue which was her decision not to make herself available   for work as reasonably required.

For the reasons stated above I do not uphold complaint   CA-00007238-001 and it fails.

Unfair dismissal, resignation of employee, reasonable   request by employer