Complainant

Respondent

Parties

A Shop Assistant

A Shop Owner

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-00009288-001

25/01/2017

The complainant worked as a shop assistant for the respondent from 14 December 2015 until 30 December 2016. There was a dispute in relation to deductions made from the complainant’s pay culminating in a heated meeting with the respondent. The complainant alleges that this meeting and the treatment which led up to it resulted in her constructive dismissal by the respondent.

The complainant was constructively dismissed for questioning a deduction from her wages, for asking about her terms and conditions and for querying why holiday pay was being withheld. She was not given any warnings before being given her P45.

On 1^st December the complainant was due holiday pay but did not receive it. The manager (Ms A) had forgotten to put the holiday hours through. She raised the matter and the next day the hours were put through. It was at this time that the complainant noticed that Ms A had struck off December on the office calendar and written that no holidays could be taken during that month. She was also told that the staff could not carry any remaining holidays over to the next year. The complainant contacted Citizens Advice who informed her that she couldn’t be forced to lose out on holidays. She was afraid to broach the matter with Ms A.

Just after Christmas the complainant expected a full week’s wages but received less than she expected. Her payslip indicated that her total nett pay was €488 whereas only €269 had gone into her bank account. She contacted a manager (Mr B) who referred her to the company accountant. The explanation given did not make sense to her.   Her partner spoke with the accountant and asked, if, as she was due holiday pay anyway, why this could not have been used to cover the shortfall. They requested that the accountant state how many hours the complainant had worked in total during the year so they could establish how much holidays was still owed. The accountant said he would get back later in the day with the information but subsequently said that it would be the next week before he had the information.   He offered to pay the complainant a sub but she felt that matters were already confused enough and declined.

Mr B contacted the complainant to see if she had spoken with the accountant. During this discussion Mr B said that ‘if you’re owed you’ll get it, no one is out to rob you’.

The next evening, at 6.15 pm the complainant asked Ms A for a copy of her contract and the staff handbook. About 15 minutes later Mr B abruptly asked the complainant to come into his office.   The daughter of Ms A and Mr B was sitting outside the office and the complainant felt she could hear the conversation. Mr B seemed quite worked up and angry. He stated that ‘ we need to sort this out before things get out of hand’. The complainant tried once more to explain the situation regarding her pay. She agreed that they needed to take out the €219 that she had gotten paid previously but no one had told her in advance that it would be deducted that week.   She also asked about holidays still due but received no adequate explanation.  Mr B was shaking with temper and spoke in an aggressive tone.

The conduct of the respondent led to a breach of trust with the complainant. The following are examples of the conduct complained of;

The respondent failed to provide the complainant with a contract or Staff Handbook;

On several occasions the respondent was left with long shifts without adequate breaks;

On several occasions the respondent was left to work alone showing a disregard for her health and safety;

The complainant was the only employee whose hours varied widely;

The complainant was left short in her wages on many occasions and had to chase the respondent for hours owed;

The respondent failed to ensure that the complainant took all of the annual leave due to her. When she questioned how much leave she had left to take she wasn’t given a clear explanation;

On Christmas Eve the respondent put the complainant in a difficult situation by telling her not to pass on information to Ms A;

The respondent’s actions resulted in the complainant’s wages being less than she was owed on 29^th December 2016. The respondent failed to inform the complainant of the deduction in light of the fact that she still had holidays owed to her. The respondent implied the complainant was paranoid when she questioned the above issues when he said ‘no one is out to rob you’;

The respondent intimidated and embarrassed the complainant in the office on the evening of 30^th December 2016, and showed a disregard for her right to privacy in her financial affairs;

The complainant was not offered any route to follow up on her grievances with the respondent.

The respondent denies that the complainant was dismissed. On 1^st December 2016 Ms A made an honest mistake and forgot to inform the company’s accountant that the complainant had taken 3 days holidays.   When the mistake was brought to the respondent’s attention the accountant was asked to rectify it as soon as possible and he paid the complainant 3 days gross pay and informed the complainant he would account for the holidays in a subsequent payroll week as he had already closed out of that week’s payroll. The next time the issue was raised with the respondent was on 29^th December when Mr B received a query from the complainant about her wages the previous week. He passed on the accountant’s details and asked her to speak directly to him. The accountant contacted Mr B to say that he had tried to explain to the complainant and her partner that she had been paid the 3 days holidays gross earlier in the month and that this had been explained to the complainant at that time.   He felt they were both too angry to listen. The accountant offered to pay an advance to the complainant but this was declined.

The next day Ms A informed Mr B that the complainant was angry and upset and suggested he speak with her. Mr B invited the complainant into his office and tried again to explain the payslip but she refused to listen to the explanation. The complainant then left the shop, leaving only one other employee for that shift. She informed that employee that she had quit. Later that night the complainant texted Mr B questioning the payslip and asking for a written explanation. Mr A replied saying he would have a letter for her on Wednesday as this was when the accountant said he would have a break down of her holiday hours taken and due. The next day, 31^st December, the complainant failed to turn up without explanation and that, coupled with what she had said to the employee the evening before, led the respondent to believe that she had quit.   On 4^th January the complainant came to the shop and the respondent gave her the information requested.  The complainant recorded the conversation with Mr B on that day in an attempt to entrap the respondent.

The respondent would also contest the complainant’s version of events insofar as;

Mr B did not raise his voice or speak aggressively;

It is false to say employees were not allowed to take holidays in December (both the complainant and other employees did in fact take holidays). Employees were told that they could not carry over leave but would be paid for any holidays still owed to them;

A copy of the staff handbook was kept in the office at all times and the complainant was told this;

The complainant was not crossed off the roster on 31^st December.

Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:

‘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,’

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western 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”.

Not every breach of contract will give rise to such repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether 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, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

At the hearing the complainant raised a number of complaints relating inter alia to holidays, working hours and breaks, health and safety, terms of employment and payment of wages. These complaints were not part of the original complaint and were not made under the various relevant acts in the appropriate manner, and therefore I am precluded from adjudicating on them. They are relevant only insofar as the complainant contends that they contributed to the breach of trust between the complainant and the respondent resulting in her constructive dismissal. It is clear from the evidence presented that these issues had not been previously raised with the respondent and were being raised for the first time at the hearing or in submissions provided for the hearing.   Where issues were raised previously, for example in relation to payment for hours worked, these were dealt with promptly. I therefore do not consider that the complainant had any reason to believe that issues raised by her would not be dealt with properly and in a reasonable timeframe.

There is a difference in evidence between the parties regarding whether or not the complainant’s name was removed from the roster on the 31st December. In the claimant’s submission she states ‘As a result,(the complainant) felt she had no choice but to leave her place of employment after the dispute on the evening of 30^th December 16’. It is therefore clear that the complainant had determined to leave at that point, and whether or not her name was subsequently removed from the roster is irrelevant. In relation to the interpretation of the statement made by the respondent by text that he would have a ‘letter’ available on 4^th of January I believe that it is reasonable that this should be interpreted as referring to the information sought by the complainant and not, as alleged by the complainant, that she was being dismissed.

In relation to the deduction from the complainant’s wages raised with the respondent on 29^th December in respect of the previous week, it is clear that this deduction related to income tax and as such was required to be made. The complainant has argued that the deduction could have been offset against holidays owed as the timing of the deduction caused hardship.   The outstanding holidays had not been calculated at that stage. However, I note from the evidence given by both parties, that an advance was offered to the complainant which, had it been accepted, would have mitigated the hardship. I do not believe that where an employer makes a deduction from wages in respect of income tax owed that this could reasonably be grounds for constructive dismissal.

Accordingly, I see no evidence of any breach of an essential term of the complainant’s contract of employment.

I see no evidence of unreasonable behaviour of the nature required to consider that the complainant was entitled to terminate her employment or that it was intolerable by any objective standard.

I have investigated the above complainant and make the following decision in accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that

• the Complainant was not unfairly dismissed.

Constructive dismissal.   Not unfairly dismissed.