Complainant

Respondent

Anonymised Parties

A Launderette Worker

A laundry

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017014-001

23/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017014-002

23/01/2018

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

CA-00017014-003

23/01/2018

This case concerns a period of 20 months of employment which ended in July 2017. The Complainant was legally represented and the Respondent represented herself in the company of her Accountant. The Claims centred on Constructive Dismissal, terms of employment and pay deemed to be outstanding. The Respondent refuted the claims.

At the commencement of hearing, the Respondent agreed to amend the legal title of the Employer and I recorded the change on consent.

The Complainant worked as a Laundry Assistant receiving €10 per hour for a variety of weekly hours ranging from 11 hrs to 29 hrs to 14 hrs. In addition, she undertook laundry deliveries for €10 per delivery. The Complainant outlined that she had not been provide with any contract of employment and the Business was bereft of employment procedures such as grievance, disciplinary or Bullying. CA -00017014-001 Terms of Employment

The Complainant stated that she did not receive a statement of her terms of employment.

CA -00017014-002 Payment of Wages

The Complainant outlined that she ought to have received €420.00 in unpaid wages, holidays and unpaid notice.

CA-00017014-003 Claim for Constructive Dismissal

The Complainants representative outlined that the Complainant terminated her employment as a Laundry assistant on an involuntary basis in July 2018. She followed this up by way of a letter of resignation dated July 24. She submitted that the complainant was afraid at work and troubled by the persistent uncertainty of shifts and having a sense that she was blamed for everything that went wrong. She stated that the Complainant became stressed during weekend working and following allegations made by the Respondent that she had “messed up the business “The Complainant was weighed down by an accumulation of being unfairly judged and did not have recourse to a Grievance procedure.

The Complainant had been suspected when € 260 went missing from the Till in June 2017. She had not taken the money and did not know what happened to cause the loss. The Complainant also submitted that her wage payments were erratic and she was restricted in telephone use.

The tipping point for the complainant came during July 2017 when she was working alone and received a follow up call from the Respondent and accused that an issue with Uniforms destined for delivery to a local hotel had not worked out and blame was apportioned entirely to her. The Complainant could no longer cope. The Complainant did endeavour to resolve the situation and” be heard “but she was missing any tools for resolution and she had no option but to resign her position. The Complainant did indicate that she had been happy on the letter of resignation but qualified this at hearing by stating that she was scared to say that she was unhappy.

The Complainants representative submitted that she had not met with her employer post the unsatisfactory comments in relation to the Hotel Uniforms.

In her evidence to the hearing, the complainant confirmed that she loved the job, her first in 18 years, but began to develop a sense of exclusion when her hours were scaled back, dry cleaning training was given to another employee and she upset regarding a false allegation of theft. Her sleep was affected.

Matters deteriorated further when she received an abusive  phone call from the Respondent to her home on July 23. She was accused of dragging the business down when uniforms were not received by the Hotel. The call was overheard by her children and this caused her upset. She understood that she received a disciplinary warning over the uniforms She submitted that she was left wondering what she had done wrong and the job was no longer fun and she stated that she was not supported at work. The Complainant emphasised that she had tried to sort out her work problems but she had not considered any other option outside her involuntary termination of employment. She gave evidence on loss and mitigation.

During cross examination, the complainant confirmed that she just couldn’t talk to the Respondent and she was left with no other choice outside resignation. She confirmed that she was in receipt of a DSP family payment.

The Complainant representative submitted that there are many instances of employee/employer conflict at work but few would have “lost the plot “as the Respondent did with the complainant on that Monday when she was called on her off time. The Respondent did not activate any Disciplinary procedures and the complainant was treated unfairly for what was really a “storm in a tea cup “. The Complainant despaired that she would not get a fair hearing and did not return to work. The Complainant sought the remedy of compensation.

CA -00017014-001 Terms of Employment

The Respondent submitted that a central contract was maintained in the business office. They undertook to produce this contract but it did not arrive in the bundle of documents post hearing. The Respondent submitted that terms of employment are now issued at the employment.

CA -00017014-002 Payment of Wages

The Respondent disputed the claim and then clarified that a liability for 16 hours of annual leave was owed. In supplementary documents, the Respondent submitted a spread sheet which confirmed payments made to the complainant on 21 July, 28 July and 4 August 2018.

CA -00017014-003 Claim for Constructive Dismissal

The Respondent runs two Laundry businesses. She outlined that her business and personal life was very difficult during the tenure of the complainant’s employment. She submitted that she understood that they had a good working and personal relationship. She considered that they were friends. The Business ran on a high trust basis and was largely staffed by family and friends. The Respondent submitted that the complainant was the first employee hired outside of that tight circle. Her employees accepted a certain fluidity in the allocation of hours and nobody received exact hours.

The Business had a long-standing contract with a Hotel to launder Staff Uniforms and an issue arose when the Hotel phoned to complain that the Chefs uniforms had not been dropped back in the manner agreed. The Respondent admitted to “losing the plot “as two employees had been rostered that day permitting sufficient time for completion. She understood that the delivery had taken place and feared repercussions for the omission.

The Respondent outlined that staff meetings were not a factor in the work as there were no formal problems. The Contract of employment was maintained in a black folder on the Office Shelf. The Respondent recalled the phone call she made to the complainant following the difficulties raised on the gap in delivery of the Chefs uniforms. She believed that she was being lied to and the Hotel had paid for a job that had not been completed.

She confirmed that the discrepancy on the missing €260 had arisen from double accounting but she had not passed that progress report onto the complainant as she had left by the time it was resolved. She reaffirmed that the Complainant was not accused of theft and there was no “missing money policy “at the business.

The Respondent recalled the phone call to the Complainant at 09.10 hrs, where the complainant stated that she was in bed and she had no awareness of children being in the proximity. She had no recollection of being asked to meet the complainant and received her letter of resignation the next day. The Respondent confirmed that she had not maintained notes of the call or subsequent events. She was unable to meet the complainant on the day of the call. She thought it better that they all calm down first. She was then overtaken by the resignation which she accepted.

The Complainant came back into work on the Wednesday but did not work. The Respondent covered the shifts herself as there was no need for the complainant services. She was paid in lieu of her notice. The Respondent had not been approached for a reference and disputed the evidence of mitigation advanced by the complainant. The Respondent submitted a copy of a contract of employment post hearing accompanied by the P45 and a selection of pay slips.

CA -00017014-001 Terms of Employment

I have considered both parties submissions on this claim. I am satisfied that the Respondent acted in continuous breach of Section 3 of the Act. Merchants Arch Restaurant Company Ltd V Felix Guerrero, Labour Court applied. I found that the omission to provide the complainant with her statutory rights under Section 3 to constitute a serious breach which in turn contributed to the conflict which arose in the third claim. I find that the claim is well founded.

I have calculated the average salary per week in a variable work pattern as €176.93 per week for this purpose.

CA -00017014-002 Payment of Wages

I have considered both parties submissions on this claim. The Respondent has accepted liability for €160 holiday pay. There was a dispute regarding notice pay. I accept that in cases of claims for constructive dismissal, notice is not normally submitted. One-week notice was submitted in this case and the complainant was not required to work it. I have found that the complainant is owed €116.93 in respect of this notice given that €60 was paid in that respect on 4 August. I have found the claim to be well   founded.

CA -00017014-003 Claim for Constructive Dismissal

I have considered the oral presentations of both parties and I have had due regard for the submission of post hearing supplementary documents as requested from both parties.

This is a claim for constructive dismissal.

In cases of alleged constructive dismissal, the complainant carries the high burden of proof of involuntary termination of employment.

Constructive Dismissal is defined in Section 1 of the 1977 Act as:

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.

There are two tests contained in this statutory dismissal:

1 Contract Test (where the employer is guilty of conduct which is a significant breach going to the root of the contract Western Excavating (ECC) ltd V Sharp [1978] IRLR 332

2 Reasonableness Test (where the employer conducts herself or her affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer Pickering V Microsoft operations ltd [2006] ELR 65

I accept that the complainant did not have the benefit of a standardised and personalised contract of employment. I found the employment relationship described by both parties to be very simple and variant from any statutory framework. There is a major difference between a workplace and a social gathering of friends and I found insufficient boundaries in that regard in this case. The complainant should have been regarded first and foremost as an employee and managed accordingly. I note that the Respondent was experiencing a very difficult trading and personal set of circumstances during the period referred to in the claim.

I note also that the complainant had returned to the workplace following a long absence and she clearly struggled in terms of securing a supportive work environment during 2017. I found that she did not have the Respondents understanding on trading difficulties and commercial contract vulnerabilities. She submitted that she lacked managerial support and security as an employee and was bereft of tools for disputes resolution.

In seeking to decide this case, I must analyse the behaviour of both parties with a special emphasis on the behaviour of the Respondent. This business was in debt and its owner under trading and personal pressures. I found that the loss of € 260 from the till in June 2017 caused a major concern, but I cannot accept that the complainant was placed under undue scrutiny in this regard. The Business chased the money against all workers and I found that the complainant demonstrated some hyper sensitivity in terms of her proximity to this event. Where I did feel that the Respondent erred was in not closing the gap that the matter had resolved. A short note to that effect would have assisted the matter.

I have been asked to consider the Tipping point in the decision taken to resign as one serious conflictual episode surrounding the Chefs uniforms in July 2017. Both parties were frank at hearing, cracks had begun to appear in the work relationship and this crystallised during July 2017. The Respondent accepted that she was very disappointed to learn that the Chefs Uniforms had not been delivered at the appointed time. I appreciate that this was a large contract and important to a fledgling business, however, the communication of her disappointment was ill timed and had no place on the complainant’s day off and in her own home. This demonstrated the blurring in boundary lines between employee and friend.

Both parties thought the matter would resolve but nobody really took steps to resolve the harshly spoken words in that phone call. I appreciate that both parties had a responsibility to take ownership of the resolution, most of that responsibility lay with the respondent in the case. I accept that the complainant did seek to arrange a meeting with the respondent by text but this did not happen and was overtaken by the formal resignation the next day. The Respondent didn’t really consider a cooling off period and accepted the complainants notice and did not require her to work during that period. I found this approach to be unduly distant and remote and a long way short of best practice. While I appreciate that texts and social media are an intrinsic part of all our lives, however, there is no substitute in an employment situation for human dialogue.

I realise that the complainant felt pressurised at work and her enjoyment had dissipated but in my opinion, she took an emotional decision when she resigned her position. Her letter of resignation displayed no signs of trauma or upset and instead was fulsome in praise for the opportunities and training she had received. The Complainant offered to support the transition for her replacement. I could not establish evidence of “the end of the road, having exhausted all options “here. I understand that the complainant may have been apprehensive regarding wording her departure but she did not seek a testamentary record or reference in the aftermath. Crucially, she did not permit herself time to consider alternatives to termination of employment. This was surprising given that she was already under medical care.

In Redmond on Dismissal Law, Des Ryan states that “Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment”. He suggests that at a minimum the grievance should be communicated before resigning, Power V University of Limerick UD 654/1991

I cannot accept that resignation, normally a last measure should have been elevated to a first course of action. I accept the unfortunate void surrounding access to procedural resolutions, however, I found the issuing of notice to leave was in fact precipitous and hasty and plunged the complainant into an extensive period of unemployment. This was regrettable.

I have found that the complainant was unreasonable in resigning as she did. I understand she was worried about the supremacy of her employer and being singled out at times. I was dissatisfied with the role played by the respondent here, in her seeking to address a work situation on the complainant’s rest period. However, I have not found that the complainants issues found their way into any sort of process or that she was forced out of her employment. The Respondent certainly chastised her during the phone call of remonstration on the day immediately preceding her notification to leave. However, in all the circumstances I found that the complainant has not met the test for Constructive Dismissal outlined in Section 1 of the Act, I would have expected a further period of engagement on the issue at the heart of the case prior to resignation. I cannot find in the complainants favour.

Terms of Employment, Payment of Wages, Constructive Dismissal

Terms of employment, payment of wages, constructive dismissal.