ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007446

Parties:

	Complainant	Respondent
Anonymised Parties	Gym Coordinator	Gym

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00009994-001	01/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00009994-002	01/03/2017

Date of Adjudication Hearing: 11/08/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a Gym Coordinator from 21^st December 2014 to 27^th October 2016. She was paid €1,875.00per month. She has claimed that she was constructively dismissed and did not get minimum notice. She has sought compensation.

1) Unfair Dismissals Act 1977 CA 9994-002

Summary of Complainant’s Case:

The Complainant was forced to resign her position after almost two years of loyal service. She was victimised because the Respondent was having issues with her sister who was an employee also. She had a performance appraisal on 11^th May 2016. She was to have a follow up meeting within six weeks, but it didn’t take place for eleven weeks. There had been no mention of management training. She was advised that her current base was not performing well. There had been a 20% drop in revenue. She was told that as she had expectations of progressing in the company she should get broader experience in a high performing gym. On 20^th September 2016 she was told that she would be transferred to a gym that was identified by the company as a high performer. She did not accept this. This gym was smaller and had less revenue. Also it was considerably further away and as she had to rely upon public transport she would not be able to get to work for the opening shift at 6.00am. On 23^rd September she took issue with the transfer, she stated that she was not given a satisfactory reason or explanation and that she was devastated by this transfer. She also stated that she had not received a pay increase that she sought or promotion. A grievance meeting took place on 26^th September. The Respondent had alleged that she was offered a 7.00am start but she rejects this. She was told that a pay increase could not be justified. Another issue arose about her sister who also worked in the company and her absence from the company. She was told that this matter would be discussed on 19^th October together with her appeal of her original grievances i.e. no valid reason to transfer her, pay increase and promotion. Her grievances were rejected. She was informed that her contract contained a flexibility clause, which allowed them to transfer her. She was told that is was to strengthen teams. She was told that if her targets improved she may be eligible for an increase. She did not appeal this outcome. She then wrote to the company on 27^th October stating that she could not get to work for 6.00 and she had to resign her position. She had kept telling the Respondent about her problem in getting to the new location. She got emails from the manager of the new location confirming 6.00am starts. She told the Respondent that she couldn’t transfer and she would have to leave. She offered to work her notice but not in the new location. She received an email accepting her resignation yet she was contacted by the new manager enquiring where she was. After she resigned she was offered a 7.00am start. She received a final payment including wages and holiday pay. . After 18 days she found work and the first four months she worked 3 /4 days per week then full time at a better rate of pay. She is seeking compensation.

Summary of Respondent’s Case:

The Complainant attended a performance appraisal on 22^nd August 2016. She was advised that she would have to improve her targets and she would require management training in order to progress. At a further meeting on 20^th September it was suggested to her that she should transfer to another branch so as to enable her to develop. The branch was identified to her. She was reminded that the branch she was in had dropped by 20%. She responded enthusiastically to this. On 23^rd September by email she took issue with the location of the branch suggested for the transfer, claiming that she was not given a satisfactory reason and that she was devastated. The Respondent agreed to meet her on 26^th September to deal with her grievance and also pay and promotion. Following this meeting they responded that she had been in the company since 2014 and stated that going to another branch would be a great benefit to her. They stated that while they knew that she didn’t have her own car the distance was just another 4 kms further and that the new location was well serviced by public transport. They also advised that they couldn’t increase pay as targets were not met. The Respondent formally responded to her grievances on 4^th October 2016. They advised her that her contract provided for moves to other branches for operational reasons and that she was to move to the new location on 24^th October 2016. An incident arose regarding whether she had been seen returning from holidays with her sister who also worked for the company, her sister was on sick leave at that time. She complained to the company about this and they agreed to meet her on 19^th October to discuss the airport issue together with her appeal of the outcome to her grievance. Her appeal was not upheld and she was reminded of the reason for the transfer was to “strengthen teams etc”. They stated that they looked into the public transport facilities and she would be in a position to work in the new location. They upheld the company’s questioning of her regarding being on holidays with her sister. She had a right appeal but she didn’t. She wrote to the Respondent on 27^th October 2016 to advise that she had been rostered at the new location for 6.00am and could not get to work and she tendered her resignation. The Respondent wrote to her on 28^thth October advising that the 6.00am start was an error and advised that she would be accommodated with a 7.00am start. They asked her to reconsider her resignation. She failed to turn up for the new location and the Respondent wrote to her on 1^st November restating that the 6.00am was an error and asked her to reconsider her resignation and referred her to the company’s internal procedures should she wish to raise a grievance. Having been unable to make contact with her on 3^rd November they wrote to reluctantly accept her resignation. On 4^th November the Complainant wrote stating that she wanted to work out her notice in her original location and insisted that the new location was impossible for her to get there. The Respondent wrote on 7^th November advising that she was telling the company where she would work out her notice; they reminded her of the transferability clause in her contract and the scheduling error. She was reminded that she was asked to reconsider her resignation but she did not. They confirmed acceptance of her resignation. On 11^th November she again confirmed her resignation.

It is the Respondent’s position that the transfer to the new location was not unreasonable. In response to her request to progress in the company they decided to move her to a new location as it would benefit her. Her contract of employment contains an express term that she be prepared to transfer. She had transferred to other locations in the past. They cited the Employment Appeals Tribunal cases Higgins v Donnelly Mirrors Ltd (UD104/1979) and Donegal v Co Limerick VEC (UD828/2011) in support. She knew the reasons for the transfer. She had not been meeting her targets in the original location. She was asked to reconsider her resignation but she declined. She was asked to utilise the internal procedures but failed to do so. They were satisfied that she could get to work for 7.00am using public transport. Not all shifts are early ones. So it was unreasonable to resign. This claim is rejected.

Findings and Conclusions:

Definition of Constructive Dismissal

Sec 1(b) of this Act states,“the termination by the employee of his/her contract of employment with his/her 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”.

In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct.

In UD 1146/2011 the EAT held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

Tierney v DER Ireland Ltd UD866/1999 “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

In the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe 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”.

The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated,”In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she hid no option but to resign her position”

Murray v Rockavill Shellfish Ltd [2002] 23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

The Labour Court UDD 1635 Mary Kirrane v Barncarroll Area Development Co Ltd stated, “Where constructive dismissal is contended for it is for the person making the claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour has fundamentally undermined the employment relationship. The person claiming constructive dismissal has an obligation to access available grievance procedures in a course of attempting to deal with whatever situation has led to consideration of termination of the employment”.

McCormack v Dunnes Stores : EAT UD 1421/2008

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

In this case I note that the Complainant had expressed an interest in advancing in the company.

I note that transferability was contained in her contract of employment.

I note that she had transferred to other branches on a short term basis in the past and at times when she was able to use her mother’s car.

I note that there was an issue with regard to her sister’s holidays that I believe on the balance of probability impacted upon the Respondent’s thinking.

I find that the transfer to the proposed new location was not handled well.

I do not accept that it was possible to get to the new location for 6.00am using public transport.

I also find that it would have been very difficult to get to work for a 7.00am shift.

I accept that not all shifts were early starts.

I find that the Complainant had raised an issue with the transfer and it was rejected. So I do not find it reasonable for the Respondent to refer her to the grievance procedure again.

I find that the Respondent’s request for her to reconsider her position to resign was a form retro action, in that it had the hallmarks of trying to get procedurally on side after the event.

I find that there is a very high benchmark to get to in order to succeed with a constructive dismissal claim.

I refer to the many cases set out above.

I find that there was wrong on both sides.

I find that the Respondent acted unreasonably in insisting upon the early starts knowing that she was dependent upon public transport.

I find that the Complainant acted hastily in resigning her position when informing the Respondent that she couldn’t get to the new location. It would have been reasonable to have sought a direct meeting to seek a final resolution of this matter.

I find that it would have been reasonable for the Complainant to have at least tried to get to the new location.

Therefore I find that the Complainant was constructively dismissed because of the Respondent’s unreasonable action of insisting that she start work at a time that was proving very difficult.

I find that the Complainant was constructively dismissed but that the Complainant has contributed substantially to the dismissal as set out above. This must be reflected in the quantum of the reward.

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.

I have decided that the Complainant was constructively dismissed but the she has contributed substantially to the dismissal.

I order the Respondent to pay the Complainant compensation of €1,250 to be paid within six weeks of the date below.

2) Minimum Notice & Terms of Employment Act CA 9994-001

Summary of Complainant’s Case:

She stated that she had no option but to resign her position as she could not attend at the new location in time to commence work, as public transport was not available at that time. She offered to work her notice in the original location but this was declined. Therefore she was prevented from working her notice. She has claimed one week’s notice.

Summary of Respondent’s Case:

They stated that she refused to work her notice. They asked her to reconsider her position and to utilise the internal procedures and she declined. She could have attended at the new location fro 7.00am if rostered but she declined. Therefore she has no entitlement to minimum notice.

Findings and Conclusions:

I note that she offered to work the notice in her original location as she believed that she could not get to the new location for 6.00am or 7.00am.

I note that she was rostered to start at 6.00 am for the week of her notice, however the Respondent admits that this was an error.

I find that she was unable to work the notice due to the roster that was given to her.

I find that she is entitled to one week’s pay in minimum notice.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that she was entitled to minimum notice.

I order the Respondent to pay the Complainant €432.69 within six weeks of the date below.

Dated: 25.10.2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Constructive Dismissal, Minimum Notice