ADJ-00015887

Complainant

Respondent

Anonymised Parties

A Childcare Manager

A Childcare Facility

Act

Complaint/Dispute 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-00020579-001

12/07/2018

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

CA-00020579-002

12/07/2018

The complainant was employed by the respondent as a Childcare Manager from 4th April 2015 until 8th June 2018. The complainant was paid €14 gross per hour. The complaint relates to alleged Constructive Unfair Dismissal and an alleged breach of the Terms of Employment (Information) Act, 1994. The complainant is seeking compensation in relation to her complaints.

The complainant stated that she did not receive a written statement of terms and conditions of employment in compliance with the Terms of Employment (Information) Act, 1994. The complainant is seeking compensation in relation to her complaint.

The respondent acknowledged that the complainant did not receive a written statement of her terms and conditions of employment as required by the legislation. The respondent stated that it was an oversight on its part at the time the complainant commenced her employment. The respondent stated that a Contract of Employment was prepared for the complainant and was awaiting her signature when she resigned from her employment on 8th June 2018.

The Applicable Law

Section 3 of the Terms of Employment, (Information) Act, 1994 states as follows:

3.(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee ’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’ s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive(whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

S.I. 49 of 1998, Terms of Employment (Additional Information) Order 1998, provides, at Regulation 3(1) as follows:

3. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

Section 7 of the Terms of Employment, (Information) Act, 1994 states as follows:

7(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3 , 4 , 5 or 6 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d ) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 .

In relation to this complaint I find that the respondent has breached Section 3 of the Terms of Employment, (Information) Act, 1994. Accordingly, and in compliance with Section 7(2) of the Act, I declare the complaint to be well founded.

Having considered the submissions of both parties to this complaint, I declare that the complaint is well founded. The respondent is directed to pay the complainant €1,120 (two week’s gross pay) in compensation.

The complainant stated that she left her employment on 8th June 2018 due to difficulties she had experienced in her employment. The complainant contends that she had been a hardworking and well valued member of staff and that she had been responsible for significant improvements in the services that the respondent provides while she was employed there.

The complainant stated that in or around February 2018 a Manager of another service owned by the Directors of the Respondent was appointed as Area Manager with overall responsibility for both services. The complainant stated that she was subsequently bullied and harassed by the Area Manager.

The complainant stated that on 8th June 2018, the area manager sought an immediate meeting with her to discuss certain performance related issues with her. The complainant contends that she was given a list from the Area Manager and asked to read the list and to discuss the issues contained therein. The complainant stated that there was a bad atmosphere at the meeting and she felt that she was being bullied by the Area Manger. The complainant stated that she began to feel anxious at the meeting and was unable to remain in the employment. The complainant confirmed that she left the meeting and did not return to the employment due to how she had been treated by the Area Manager.

The respondent does not accept that the complainant was the subject of a Constructive Unfair Dismissal. The respondent acknowledged the complainant’s loyal and committed service to the organisation. The respondent also accepted that the complainant and the other staff were under pressure to ensure compliance with Health and Safety and Childcare standards.

The respondent stated that the appointment of an Area Manager was put in place to support the complainant in meeting the required standards. The respondent contends that there were some issues of concern in relation to the complainant’s performance but at no time had it considered invoking its disciplinary procedures. Specifically, the respondent stated that there were issues relating to unauthorised breaks and mobile phone usage during working hours. It stated that there were also health and safety concerns such as cross contamination of cloths in the childcare facility as well as issues relating to the wearing of Gel Finger Nails. It stated that it also had concerns relating to Child ratios in the facility and there was an incident where a Child who needed a Special Needs Assistant (SNA) was not in the correct group and was not in the care of the SNA at the time. The respondent also stated that it had a Statutory Inspection in October 2017 and there had been some issues of non-compliance raised. The respondent re-iterated its position that none of the issues had resulted in any disciplinary procedures and that it was fully confident in the abilities of the complainant. The respondent contends that the Area Manager was appointed to assist the complainant in reaching the required standards. The respondent stated that it acted reasonably at all times and that unfortunately the complainant left the employment without raising any formal grievance and in those circumstances had not followed the employment policies of which she was aware.

In relation to this complaint I find as follows:

The complainant was an employee who had given loyal service to the respondent. A colleague of the complainant was promoted to Area Manager in February 2018. It appears that issues arose thereafter between the two individuals which left the complainant feeling that she was being bullied and harassed whereas the Area Manager genuinely believed she was fulfilling Management’s intentions to support the complainant in reaching the required standards in her employment.

The meeting that took place on 8th June 2018 was sought immediately by the Area Manager on that day when she presented a list of concerns to the complainant. The complainant was required to read the document and discuss its contents immediately, despite it being during the working day and in circumstances where she was working under difficult circumstances which had been acknowledged by the respondent. At the time the meeting was sought the complainant was preparing to attend activities with the Children in her care but agreed to attend the meeting a short time later. The complainant stated that she felt anxious at the meeting and that she could not remain in the employment. I find that the complainant was justified in her feelings of anxiety as a result of being given a document and being required to attend an immediate meeting to discuss its contents. I find it would have been more appropriate for the Area Manager to provide the document to the complainant and give the complainant time to considers its contents and arrange the meeting for the next day or a mutually suitable day thereafter. However, the complainant agreed to attend the meeting and subsequently left the meeting and resigned from the employment.

The respondent stated that the complainant was aware of its grievance procedures and had the opportunity to raise a grievance with the Owners if there were any issues relating to her employment or her interactions with the Area Manager. The respondent stated that she did not do this, opting instead to walk out of the meeting on 8th June 2018 and resign from her employment.

The Applicable Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

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. 

The burden of proof rests with the Complainant in this case.

In deciding if a constructive dismissal has occurred, I have considered the “contract” and “reasonableness” tests as outlined in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27.

The “contract test” is summarised 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 as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to exhaust internal procedures is also an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,

“We find that the claimant did not exhaust the 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.”

In all of the circumstances of this complaint and notwithstanding the circumstances surrounding the meeting of 8th June 2018, I do not find that the employer conducted itself in a manner that left the complainant with no other alternative than to leave the employment. I also find that if the complainant was dissatisfied with any issues regarding her employment, she was aware of the grievance procedures and could have raised a formal grievance instead of resigning. Accordingly, I find that the complaint of alleged Constructive Unfair Dismissal cannot succeed.

Having considered the submissions of both parties to this complaint, I find that the complainant was not the subject of a constructive unfair dismissal. Accordingly, I declare that the complaint is not well founded.

Constructive Unfair Dismissal, Contract of Employment