UDD1751

The Decision issued on 11 April 2017. The Respondent/Appellant appealed against that decision to this Court on the 23^rdMay 2017. The case came on for hearing before this Court on4 October 2017.

The Law

Section 1 of the Unfair Dismissals Acts 1977 -2007 defines dismissal as: -

• (a) 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 employee,

  (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

  (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

It was described by Lord Denning M.R. inWestern Excavating (ECC) Ltd v Sharp[1978] I.R.L.R. 332 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 discharged from any further performance”.

It also deals with a situation in which the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.

The Contract of Employment

The Complainant’s contract of employment in relevant part states

• Hours of Work/Breaks

  Your normal hours of work will be ___hours per week.

  OR

  Your hours of work will vary as per the roster and will be notified to you in advance.

  You may on occasion be required to work additional hours to meet the needs of the business.

In this case Ms Catherine McNena (the Complainant) was employed by The Holy Cross Bars Limited ( the Respondent) from 19 June 2009 until she terminated her employment on 18 April 2016 claiming that she had been constructively dismissed. In that regard she relies on section 1(b) of the Act.

She worked as a part time waitress. She was normally rostered to work mornings and on weekends. At busy times she also assisted behind the bar.

On 18 April 2016 she was rostered to work between 1pm and 9pm. Before her shift commenced she received an sms message from one of the proprietors of the bar informing her that a group was expected to visit bar later that evening and was asked if she could remain at work until 10:30 pm to accommodate the additional crowd. The message was sent to her at 12:21pm. It stated

“Hi Catherine can u stay till 10.30 tonight hurlers are in.”

She attempted to contact management to advise them that because of family circumstances she could not work beyond 9 pm. She finally sent an sms message to management advising that she could not do the extra hours that day.

That message stated

“Izzy tried ringing you there. Cant stay. Have to get home to Adam as homework needs to be checked and he needs something to eat. 9 is the latest sorry.”

Izzy replied in the following terms

“Catherine rota is subject to change and I have to change it till half 10 as Eric can’t do it by himself. Sorry.”

The complainant then phoned her manager and advised her she could not remain at work beyond 9pm for the reasons stated above. The manager advised her that she was required to work as requested. The Complainant told the manager that the situation was stressing her.

The Complainant then gave the Respondent notice of termination of her employment.

At that point the Complainant went to her General Practitioner and was issued with a Medical Certificate stating that she was unfit for work due to acute stress.

That afternoon the Respondent sent the Complainant a further sms accepting her resignation and notifying her that her final date of employment would be 2 May and informing her that she would arrange to have all outstanding monies due to her ready for collection on that day.

The Complainant returned to work, raised no further issue with the respondent, and duly finished working for the respondent on 2 May.

The Complainant submits that the termination of her employment amounts to constructive dismissal. The Respondent submits that the Complainant resigned her position and worked her notice.

Findings of the Court

The Complainant gave evidence to the Court. In the course of that evidence she told the Court that she did not resign her position with the respondent. She said she told the Respondent she would have to resign if she was being forced to work beyond 9 pm. She told the Court that this was then taken to be a resignation.

However in cross examination the Complainant told the Court that she did not dispute the sms sent to her by the Respondent accepting her resignation and setting 2 May as her final day at work. She told the Court that she did not challenge the accuracy of this sms and that she did not intend begging for her job back.

Having heard the evidence of the Complainant the Court finds that she reacted in haste to a request for her to work beyond 9 pm. The Court finds that the Respondent did not commit ”a repudiatory breach of contract the employee nor did it conduct its affairs in relation to the employee, so unreasonably that the employee could not fairly be expected to put up with it any longer.”

In those circumstances the Court finds that the grounds for constructive dismissal have not been made out by the Complainant.

Determination

The Complaint is not well founded. The appeal is allowed. The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
13 November 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.