ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003556
Parties:
| Complainant | Respondent |
Anonymised Parties | A Veterinary Nurse | A Veterinary Practice |
Representatives | Paul McGlynn HRS Consultants | Mr Michael Macnamee B.L. instructed by Aidan McGrath DAS Group |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004151-001 | 29/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00004151-002 | 29/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004151-003 | 29/04/2016 |
Date of Adjudication Hearing: 11/12/2017
Workplace Relations Commission Adjudication Officer: Andrew Heavey
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 commenced her employment with the Respondent on 19th September 2011 as a Veterinary Nurse. The complainant’s gross weekly pay was €471.00 The complainant’s employment ended on the 20th July 2015. The complainant is claiming Constructive Unfair Dismissal. |
Preliminary Issue: Time Limit
Summary of Respondent’s Case:
The respondent raised a preliminary point that the within claims are out of time as they had not been submitted to the Workplace Relations Commission (WRC) within the six-month statutory timeframe. The respondent submitted further documentation on 10th January 2018 stating that the complainant had produced no medical evidence to explain the state of her health prior to or at the time she made her complaint. The respondent also stated that the letter from the complainant’s therapist does not constitute an explanation for failing to submit her complaint within the statutory limitation period. |
Summary of Complainant’s Case:
The complainant’s case is that due to the conduct of the employer she was left with no option but to resign from her employment on 20th July 2015. The complainant stated that the way she was treated by the employer over a sustained period had a detrimental effect on her mental health and she began to suffer from anxiety and panic as a result. The complainant’s position is that she was unable to process what had happened to her or consider making a complaint as a result and it was not until April 2016 that she felt she was strong enough to make her complaint. The complainant cited Adjudication Decision No: ADJ-00004959 and EAT Decision No: UD1083/2012 in support of the request to extend the time limits. |
Findings and Conclusions:
Time Limits Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provides as follows: “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” “(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” Reasonable cause The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: - “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”. Decision Having taken into account all of the information and evidence provided at the adjudication hearing and the documentation submitted thereafter, I am satisfied that the delay in the complainant referring the complaint to the WRC satisfied the test as set out in Labour Court Determination No: DWT0338. Accordingly, I grant the extension of time sought by the complainant. The complaint is therefore within time. |
CA-00004151-001 Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The complainant contends that she did not receive her rest intervals and breaks while at work. The complainant’s position is that it was a regular occurrence. The complainant stated that although the practice closed at lunchtime, she was often delayed in taking her break or did not receive a break at all due to issues that could arise at short notice or in preparation for an appointment in the afternoon. The complainant stated that she was also tasked with reception duties and ordering items for the practice as well as carrying out her role as a veterinary nurse. |
Summary of Respondent’s Case:
The respondent stated that the complainant did receive breaks when possible. The respondent’s position is that the office closed from 1.30pm to 2pm each day and that lunch breaks were provided. Given the nature of the business, emergencies could occur which could delay other breaks but they were facilitated when possible. |
Findings and Conclusions:
Section 12 of the Organisation of Working Time Act, 1997 states as follows: 12(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1). (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour). (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2). The complainant asserted that there were many occasions when she did not receive her breaks while at work. In its submissions, the Respondent stated that the nature of the business was such that emergencies could arise but that breaks were provided when possible. The Respondent accepted that there were times when the complainant did not receive her breaks. In response to questions at the adjudication hearing it confirmed that it had not maintained records as required under Section 25 of the Organisation of Working Time Act, 1997. In all the circumstances of this referral, I accept that it was often the case that the complainant did not receive the required rest intervals and breaks while at work. |
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.
Having considered all aspects of this complaint I declare that the complaint is well founded. I consider it fair and equitable that the complainant be compensated for the infringements of her rights under the Act. The Respondent is required to pay the complainant compensation in the amount of €1000 within six weeks of the date of this Decision. |
CA-00004151-002 Unfair Dismissal Act, 1977
Summary of Complainant’s Case:
The complainant contends that she was left with no alternative but to leave her employment as a result of the way she was treated by her employer. The complainant’s position is that there were numerous incidents where she was belittled and humiliated by the Respondent. The complainant contends that she was wrongly accused of making errors at work, was shouted at on numerous occasions, was laughed at, had personal remarks made to her about her diet, was told her hair colour was inappropriate and unprofessional, was subject to comments of an inappropriate nature concerning male body parts, had homophobic remarks made in her presence on many occasions and was placed on a second period of probation at the beginning of 2015 despite successfully completing her probationary period when she first joined the organisation in 2011. The complainant stated that she had been the subject of repeated inappropriate behaviour since commencing in employment with the Respondent in September 2011 but continued in her employment as best she could. The complainant stated that matters began to get steadily worse from November 2014 onwards and it was at that time that she began to take notes of what was happening. The complainant contends that the treatment of her by the Respondent greatly affected her mental health and wellbeing. The complainant stated that she had no option but to resign on 20th July 2015 as a result. The complainant stated that she began to suffer from anxiety and panic attacks and that, despite her best efforts over many months to self-manage these difficulties, she ultimately sought professional help through Cognitive Behavioural Therapy. The complainant contends that she attempted to raise issues that she was dissatisfied with but did not raise a formal grievance as she felt this would only make matters worse. In addition, the complainant stated that there were no grievance procedures in place at the time and that she never received a staff handbook or company procedures. She stated that she felt there was nobody she could talk to as it was two of the Principal Directors of the organisation that she had difficulties with and the third Principal Director had minimal involvement in the day to day running of the business. The complainant is seeking compensation for the losses she has accrued as a result of her Constructive Unfair Dismissal. The complainant calculated her losses as €15,090. |
Summary of Respondent’s Case:
The respondent refutes the complainant’s position. The respondent contends that the complainant was not dismissed either as claimed or at all. The respondent’s position is that the complainant left her employment to take up a new position elsewhere. The respondent denies all accusations put forward by the complainant. In relation to the second period of probation the respondent stated that performance issues had arisen and following a disciplinary process a verbal warning was issued and a period of monthly meetings were put in place as a support mechanism. The respondent contends that the complainant’s performance was improving and that she was not placed on a second period of probation as claimed. The respondent contends that comments allegedly relating to the complainant’s diet were merely conversations that took place at lunchtime. The respondent emphatically denies any suggestion of homophobic comments or any other inappropriate remarks/topics of conversation. The respondent stated that the veterinary practice sometimes has emergencies and that time can be of great significance in these circumstances. The respondent stated that trying to save an animals life under pressure can result in a tense atmosphere but at no time did the Respondent ever deliberately seek to humiliate or embarrass the complainant. The respondent stated that the complainant had received a contract of employment and was aware of its grievance procedures but had not raised any issues in relation to alleged difficulties. As no issues had been raised, the respondent was unaware of the alleged health problems that the complainant was experiencing. The respondent stated that the complainant had been absent on sick leave for one week in February 2015 but this absence had been certified as a gastro intestinal complaint as opposed to workplace stress. The respondent does not accept the losses as submitted by the complainant or the medical evidence that she has submitted in relation to her sessions of Cognitive Behavioural Therapy. The respondent does not accept the medical evidence as it has not had the opportunity to cross examine the Cognitive Behavioural Therapist, to review the complainant’s medical records or to call rebuttal medical evidence. |
Findings and Conclusions:
The complainant has claimed Constructive Unfair Dismissal on the basis of how she was treated in the course of her employment by two Principals of the Respondent organisation. She stated that she was not able to continue in her employment as a result. She is seeking compensation in relation to her complaint. The complainant has quantified her losses at €15,090. The respondent refutes the claim and stated that the complainant left the employment to take up a new position elsewhere. The Respondent stated that it was not aware of the complainant’s difficulties as she had not raised them as a grievance in line with its procedures. The Respondent stated that the complainant’s case should fail as a result. In relation to this issue I find as follows: It became clear at the adjudication hearing that, at the material time, there were no grievance procedures in place apart from a sentence in the contract of employment which states: “if you have a grievance in relation to any aspect of your employment, you have a right to a hearing from your immediate supervisor. If you are unhappy with the outcome of that hearing, you may appeal to the Practice Principal.” The parties clarified that there are now grievance procedures in place following a HR review in 2016. The complainant outlined that making a complaint in line with her contract of employment would only have made things worse as she was on a second probationary period and her difficulties were with two of the Principals of the organisation. She claimed the second period of probation had caused her great distress and had eroded her confidence. The respondent stated that the complainant was not on a second probationary period but was in fact being supported on foot of a verbal warning following a disciplinary process. On balance, I find that the complainant was correct to assume she was on a second probationary period as the forms used by the respondent in its monitoring process clearly stated “Probation Review Form.” I also accept the complainant’s reasoning in forming the view that lodging a complaint in line with the procedures outlined in her contract of employment would have made matters worse. The complainant submitted a number of Employment Appeals Tribunal decisions of varying relevance in support of her contention that submitting a complaint in the particular circumstances of her employment, and the particular difficulties that she had experienced with the Principals of the organisation, would have been pointless. (List appended) The complainant stated that there had continuously been issues of inappropriate treatment towards her since she started in the employment and that these issues got gradually worse. She claimed her health suffered as a result and she began to suffer from anxiety and panic attacks. The complainant stated that she did not go to seek professional help for a number of months as she tried to manage the situation herself and had hoped that matters would improve once she was no longer in the employment on a daily basis. I find this to be a reasonable and honest account of the situation. It is often the case that individuals suffering from anxiety and panic and other mental health issues carry on in the hope that things will get better yet ultimately, and in their own time, decide that they need to seek help for their problems. The 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.
There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.
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 “reasonable 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 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.” In relation to availing of a grievance procedure, the Labour Court held as follows in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132: “The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal.” See Allen v Independent Newspapers [2002] E.L.R. 84; May v Moog Ltd [2002] E.L.R. 261 and Monaghan v Sherry Bros [2003] E.L.R. 293. See also the determination of this court in New Era Packaging v A Worker [2001] E.L.R. 122)” On the basis of the grievance procedures that existed in the contract of employment, I accept the complainant’s evidence that she felt there was nothing else she could do but resign. The complainant held the subjective view that she was continuously treated very badly by two of the Respondent Principals, had been humiliated and embarrassed and in those circumstances there was little point in raising a grievance in line with her contract. In all of the circumstances of this case I find that the complainant acted reasonably and that the complaint of constructive unfair dismissal succeeds. Mitigation of Loss The complainant stated that she was without work for 6 weeks from July 2015 until September 2015. She did not seek any payment from the Department of Social Protection. She then commenced maternity leave cover as a veterinary nurse for three days per week until February 2016. In March 2016, she began working 22 hours per week in a different business and remained working as a veterinary nurse for one day per week. The complainant’s total losses were quantified at €15,090. The complainant stated at the adjudication hearing that despite previously working full time, she was satisfied with her current level of work. In calculating the appropriate compensation due to the complainant, I am mindful of the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the complainant’s efforts to mitigate her loss. In that case the EAT found that the complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which stated: “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…..the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” In the instant case, the complainant did not provide any evidence that she met the above standard in attempting to mitigate her loss. In those circumstances, I do not consider it appropriate to award the level of compensation sought. |
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.
Decision:
Having taken into account the written and verbal submissions of both parties and all of the additional information submitted, I find that the complaint is well founded. I award the complainant €4,000 in compensation which I consider to be just and equitable in all the circumstances of this complaint. |
CA-00004151-003 Terms of Employment Information Act, 1994
Summary of Complainant’s Case:
The complainant stated that the contract of employment did not meet the requirements of Section 3 of the Terms of Employment (Information) Act, 1994 in so far as there were a number of details omitted from the contract. |
Summary of Respondent’s Case:
Notwithstanding its position on the time limit issue, the respondent refutes the complainant’s position in relation to the contract of employment. The respondent stated that the complainant was provided with a copy of her contract of employment on 12th October 2011. The respondent stated that the claim is without merit. |
Findings and Conclusions:
In relation to this issue, I find that the complainant received her contract of employment and signed for its receipt on 12th October 2011. The 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 there are a number of breaches of 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 carefully considered the matter, I find that an award of compensation is appropriate in all of the circumstances of this case. |
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.
The respondent is ordered to pay the complainant compensation in the amount of €500 for the breaches of the Act. This payment should be made within six weeks of the date of this Decision. |
Dated: 8th February 2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Constructive Dismissal, lack of grievance procedures, rest intervals and breaks, contract of employment. |
Cases submitted: Schonfield vs. West Wood Club Clontarf Ltd. (UD1013/2013) Beglan v Scanomat Ireland Ltd. (UD688/2012) Glica v The Bagel Bar Franchise Co. Ltd. (UD1217/2013) Allen v Independent Newspapers (UD 641/2000) Gallery v Blarney Woollen Mills [1990] ELR 143 Jay Porter v Atlantic Home Care Limited UD 971/2005.
Cases cited:
Western Excavating (ECC) Ltd v Sharp [1978] IRLR27 Conway v Ulster Bank Ltd (UD 474/1981) Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132: Coad v Eurobase (UD1138/2013) Sheehan v Continental Administration Co. Ltd (UD858/1999) May v Moog Ltd [2002] E.L.R. 261 Monaghan v Sherry Bros [2003] E.L.R. 293. New Era Packaging v A Worker [2001] E.L.R. 122
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