ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007212

Parties:

Complaints:

Date of Adjudication Hearing: 01/08/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 - 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:

2) Payment of Wages Act 1991 CA 9349-001

Summary of Complainant’s Case:

1) Public Holidays December 2013 to May 2014.

She has claimed for Dec 25 & 26^th 2013, Jan. 1^st, Easter Monday and May 2014.

2) 3.25 hours

She has claimed for 3.25 hours wages for up to 20^th December 2013.

3) Underpayment

She has claimed 0.5 day underpayment for flexi timer due in 2013.

4) Underpayment

She has claimed that she was locked out of work and so should not have been placed on sick pay and reduced pay to nil pay. She is claiming the amount due between the full pay rate and the reduced pay for the period that she was out sick up to the date that the employment ended on 27^th July 2016. She has quantified this as follows: 2013 = €3,322, 2014= €20,950 (€2,911 + €11,736, + €6,303) 2015 = €24,425, 2016 = €15,316.

Holiday pay was claimed: she is seeking the difference between €599.84 per week and €588.00 per week (€11.84) for 18 days in 2015/2016 and 9 days in 2016/2017.

Summary of Respondent’s Case:

The Respondent stated that the Complainant went out sick on 2^nd May 2013. She was never suspended or locked out. They referred to a previous claim under the Payment of Wages Act dated 12^th October 2015 dealing with these matters. There are no monies due to her. She was paid in respect of her absence since 2^nd May 2013. She was paid according to the sick pay scheme and policy. She was placed on reduced pay and eventually to nil pay. She was not locked out, she was not suspended and no threats were made. She made a separate complaint under the Employment Equality Act which found that the complaint was not well founded and so it failed. All her original complaints (1-3 above) under this Act are out of time.

No monies are due and this complaint is rejected.

Findings and Conclusions:

Complaints 1-3

I find that the complaints under 1-3 above are out of time. I refer to the Rights Commissioner decision in her complaint heard on 12^th October 2015 r-157925-pw-15/EH.

For ease of reference I attach the relevant section as follows: Sec 6 (4) of the Payment of Wages Act states “a rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”.

Therefore as per Sec 6(4) of this Act the claim is out of time due to the fact that the claim refers to a period of time well beyond the six months’ time limit provided for.

I refer to the High Court cases Moran v Employment Appeals Tribunal [2014] IEHC 154 and Health Service Executive v McDermott [2014] IEHC 331 where the High Court was asked to consider the meaning “within the period of 6 months beginning on the date of the contravention to which the complaint relates”.

These High Court judgments confirm that, having regard to how the Complainant herein described his claim (from effect from 2010) which is a period that is well beyond the six month statutory period provided in the Payment of Wages Act. Therefore this claim is out of time.

Mr Justice Hogan relying upon the Moran decision in the McDermott decision held as follows, “This was because the complaint as formulated by the claimant in that case related to a time period of alleged contraventions which was plainly time barred”.

This complaint was presented to the Commission on 26^th January 2017. The complaints 1-3 above refer to years 2012, 2013 and 2014.

Therefore I find that this part of the claim relates to a period of time well beyond the six month statutory period provided for in Sec 6(4) of the Act.

Complaint 4 Underpayment

I note the Employment Equality Act decision where that complaint was not well founded. I also note that again the Complainant has confirmed to this hearing that the Respondent adhered to the provisions of the sick pay scheme.

I note that the Complainant has alleged that she was suspended and or locked out of work.

I found no evidence to support that assertion.

In order to succeed with a complaint under the Payment of Wages Act the claimant must establish that they had a contractual entitlement to the monies claimed.

I find that the Respondent applied the sick pay policy and rules of the scheme.

I note that the Complainant has stated that the Respondent adhered to the terms of the sick pay scheme.

I find that the Complainant has not established a contractual entitlement to the monies claimed.

I find that this part of the claim fails

Decision:

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

I have decided that no illegal deductions were made from her wages.

I have decided that the Respondent has not breached Sec 5 of this Act.

I have decided that this complaint should fail.

3) Unfair Dismissals Act 1977 CA 9349 -002/003

Summary of Complainant’s Case:

The Complainant has claimed constructive dismissal. She alleges that under Sec 8 to 13 of the Safety, Health & Welfare at Work Act there is an obligation on employers to provide a safe place of work. She alleges she suffered continuously from harassment by her managers. She alleges that because of the continuing behaviour of her Principal Officer and Assistant Principal Officer she had no option but to resign her position. She is seeking compensation. She has found work in November 2016, details were not provided.

Summary of Respondent’s Case:

The Complainant had alleged that she was harassed at work. The Respondent commissioned an independent investigation, which found that she was not harassed. She appealed this outcome and a review of the investigation and the allegations was conducted. The outcome was that it was found that she was not harassed. She then made a complaint of victimisation under the Employment Equality Act. She resigned her position before the Equality Officer issued the decision. It was unreasonable for the Complainant to resign her position before the outcome of the equality case. She has not given any reason for her entitlement to resign. The Equality Officer subsequently issued the decision and found that she was not harassed or victimised.

An independent investigator, a Reviewer and an Equality Officer all found no basis for her allegations of harassment or victimisation. She has not established any reason why she should have resigned her position. This complaint is rejected.

Findings and Conclusions:

Definition of Constructive dismissal.

Sec 1(b) “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 their 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”

In Tierney v DER Ireland Ltd UD866/1999 the EAT stated, “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 it 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 had no option but to resign her position”

In 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 in 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”.

In McCormack v Dunnes Stores UD 1421/2008: the EAT stated, “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 order to succeed with a constructive dismissal case the complainant must establish that the employer’s conduct/behaviour was such that the employee had no option but to resign their position. They must also ensure that they have given the employer an opportunity to deal with the allegation/ grievance before the decision to resign is taken. They must be able to assert their entitlement and reasonableness to resign their position.

In this case I find that the Complainant raised a grievance/ complaint of harassment against her managers. The Respondent commissioned an independent investigation and a 200 + page document and findings was issued and the complaint/grievance was not upheld.

Following an appeal a Reviewer examined the investigation and upheld the outcome that there was no case of harassment established.

She then took a case of victimisation / harassment under the Employment Equality Act but she resigned her position prior to the issuing of the decision.

Therefore being cognizant of the precedents set by the Employment Appeals Tribunal and the Labour Court set out above I find that the Respondent acted reasonably in how they dealt with the complaint and grievance through an independent investigator. They then carried out a review of the independent investigation and again her complaint/ grievance was not upheld.

She then filed another complaint under the Employment Equality Act alleging victimisation / harassment but she resigned before the Equality Officer had issued a decision.

I find that she was unreasonable in resigning.

I find that she has not established an entitlement to resign.

She has not established that her employer’s conduct was such that she had no option but to resign.

I find that she has not established a case of constructive dismissal.

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.

For the above stated reasons I have decided that the Complainant was not constructively dismissed and that this complaint should fail.

4) Safety Health & Welfare at Work Act CA 9349 -004

Summary of Complainant’s Case:

The Complainant stated that she has been penalised by her employer in that they retaliated for making a complaint of harassment by increasing the harassment. The Respondent made fictitious complaint against her in 2012 -2013. They made reference to her health and in particular her mental health. She was victimised between the years of 2012-2013. The penalisation continued until 2^nd May 2015, which was the last day that she actually worked. She has made requests under freedom of information concerning employment matters to be reviewed and issue pertaining to the investigation and report.

Penalisation is the continuing harassment and increase in harassment after she made the complaint.

She is seeking compensation.

Summary of Respondent’s Case:

The Respondent stated that the Complainant raised a grievance of harassment by her managers and they appointed an external investigator. A very comprehensive report was produced. Her managers gave evidence at the investigation. Her complaint was not upheld. She appealed the outcome and a formal review was undertaken and again her complaint was not upheld. She then lodged a complaint of victimisation/ harassment under the Employment Equality Act.   The mangers gave evidence at that investigation. She resigned her position before the Equality Officer issued her decision. The Equality Officer subsequently found that the Complainant was not victimised or harassed.

Any penalisation could only have occurred pre 2^nd May 2013, the last day that she actually worked. Therefore this complaint is out of time. This complaint is rejected.

Findings and Conclusions:

Penalisation can only be established if conduct or omissions which are included in the statutory meaning of the term penalisation arise as set out in the Act and as a consequence of an act protected insect 27(3) and but for the protected acts of subsection 3 the claimant would not have suffered the detriment complained of.

So it must be established that the Complainant made one or more of the acts set out in Sec 27(3) and the Respondent in retaliation to that act by the Complainant carried out one or more of the acts as set out in Sec 27(2).

I found that the Complainant had great difficulty in particularising her complaint.

I find that she has not established that the Respondent retaliated against her for making a complaint other than stating that the harassment/ victimisation increased.

In fact the Respondent had her complaints independently investigated and they were deemed to be unfounded.

I also note that the Complainant’s complaint under the Employment Equality Act also failed.

Therefore there has been a consistency in the findings that no harassment or victimisation took place.

Also I note that this complaint was presented to the Commission on 25^th January 2017 and the period that may be investigated is 26^th July 2016 to 25^th January 2017.

I find that 2^nd May 2013 was the last day that she worked and so that was the last date that she could have been penalised at work.

Consequently I find that this complaint is well outside the time limit allowed under This Act.

Decision:

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

Dated:   12/09/17

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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