Complainant

Respondent

Anonymised Parties

An Employee

A Cosmetics Company

Representatives

Helena Guilfoyle B.L. Citizens Information Service

Mary Jayne McFerran Peninsula Group Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00010424-001

16/03/2017

The complainant was employed by the respondent since May 11th 2015 until February 2nd 2017 as a Warehouse Operative on wages of €300.75 per week for a twenty-five hour week. A dispute arose about her annual leave and she complains that she was the subject of a constructive unfair dismissal.

The complainant returned from annual leave and was told she had a further four days of her entitlement still untaken.

She was planning a week off which would have required one day more than the four referred to. She offered to work back the time but this was refused.

She was upset by this and felt she was being penalised. She made a comment to the effect that she was paying the price for being honest and had she gone sick it would not have been an issue.

She was issued with an informal warning on August 9th 2016 and she felt that had been the end of the matter.

In due course she was given notice on September 19th to attend a disciplinary hearing on 21st. She believed that this was in respect of the same incident for which she had been given the informal warning.

Despite her concerns about the procedure she attended having been put on further notice that failure to do so might in itself constitute additional grounds for disciplinary action. She was given minutes of the August meeting only minutes before the disciplinary hearing.

She was accompanied by a colleague at the meeting.

She became ill following the hearing and had to go home. Her GP certified her as suffering from work related stress. She felt that she had been subjected to disciplinary process twice for the same incident.

In the course of her sick leave absence she was notified of the outcome of the hearing which was a written warning. She appealed and was advised the hearing would take place on her return to work.

She returned on November 8th.

She was advised that her hours were being reduced from twenty-five to fifteen due to a downturn in the business.

She further inquired about the appeal and was told that the respondent was not proceeding with the matter and she was eventually told that it was effectively rescinded.

However, shortly after that she was initially advised that she was being laid off and then made redundant. This was confirmed on November 16th.

She was confused and submitted a grievance on December 15th. This outlined some ten points of grievance. The respondent replied to this and proposed a meeting to consider the grievance on January 6th. However this did not suit.

Letters from her representative on January 9th and 26th went unanswered. The representative made a call on February 14th and was told a reply would issue that day.

No reply was received and the complainant resigned on February 21st.

She received a letter the following day from the respondent offering to meet.

However, she indicated to the respondent that as she had resigned she did not wish to avail of the opportunity to do so.

The facts regarding the annual leave incident were not in dispute. The complainant sought additional leave which was refused.

The respondent says that when this happened the complainant became aggressive and demanded an extra day; saying that she ‘could have gone sick’. In the event, she did attend for work.

She was invited to a meeting and initially refused to attend but eventually did so. This meeting, on September 9th ‘went badly’ and she attended a second meeting the following day.

While the complainant has said the leave incident was dealt with at the time the subsequent disciplinary meeting to which she was invited on September 21st arose, not from the leave incident but from the complainant’s conduct at the meeting on September 9th.

She was advised of this at the time.

The outcome was a written warning which was issued on September 23rd. Her appeal of September 29th was acknowledged on October 3rd with an indication that it would be dealt with on her return from sick leave.

By the time she returned on November 8th the respondent was experiencing serious financial difficulties as a result of the loss of a significant contract. She was told that her hours would be reduced to fifteen per week. This worsened two days later and at that stage the complainant was told she was to be laid off as there was not work for her.

On November 16th the written warning was rescinded.

On December 14th the respondent received the grievance letter and replied two days later with an offer to hear the grievance on December 19th but the complainant could not attend. The meeting was rearranged for January 6th but again the complainant could not attend.

The respondent wrote on February 16th offering to hear the complaint on February 24th, but the complainant said she did not receive this until the 22nd, by which time she had resigned.

The complaint is one of constructive dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to follow.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340);

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

So how do these tests apply in the current case.

There are a number of distinct episodes in the narrative.

There is the disagreement about the additional annual leave and the fallout from that. The complainant thought that the matter had been disposed of with the informal warning, the respondent says it took further action because it felt the complainant’s reaction and the manner she spoke to one of the managers required it.

Seven (out of ten) elements of her grievance refer to this (the first five and the seventh, and the ninth, although they are not numbered in the grievance letter).

She describes the issuing of a written warning as ‘a further act of harassment and bullying’. Leaving aside the fact that there is no previous act of harassment and bullying referred to the simple communication of a disciplinary sanction on these facts is no such thing and this is mere hyperbole.

I can find nothing in the operation of the company’s processes up to that point which would, either on its own or taken with what followed provide a justification for termination of the complainant’s contract of employment in line with the jurisprudence above. (The complainant has a point about the provision of the minutes of the August meeting but it is not a significant one in the context of this complaint.)

In any event the disciplinary decision was rescinded. (Somewhat bizarrely, part of her grievance was a complaint about the rescinding of the decision because she ‘had not been given the opportunity to have an appeal hearing’.)

Three others relate to her being advised of lay off, and then redundancy.

The final complaint is that being selected for lay off was an act of being victimisation in retaliation for her appealing the disciplinary sanction.

The tests outlined above as to whether the respondent behaved reasonably arise in relation to three aspects of the case; the initial disciplinary process and its aftermath, the lay off/redundancy and finally its handling of the grievance.

There is nothing in the initial annual leave related incident and the disciplinary steps that followed it that can ground a decision taken several months later to break the contract of employment.

Likewise, evidence was given of the loss of contracts, (in one case, where the customer was identified, worth one hundred thousand euros per month) and the fact that other employees were also affected. All employees were placed on reduced hours and two and then a third employee were laid off.

There is no basis for saying this was related to her appeal.

Finally, in relation to the handling of the grievance, the respondent responded within two days of receiving it and offered a meeting four days after that on December 19th. When that did not suit a meeting was offered on January 6th which did not suit the complainant’s representative.

While the complainant’s non-availability to attend these meetings may be perfectly valid it goes to undermine any complaint that she was justified in termination her employment, although it took the respondent several weeks (and possibly the complainant’s resignation letter) to offer another meeting.

This delay, from hearing from the complainant’s representative on January 9th and 26th and February 14th until a meeting was again offered on February 22nd is excessive.

However, it is the only grounds the complainant has for validly criticising the respondent’s actions. and I find for the purposes of constructive dismissal it is insufficient to ground her complaint. The respondent’s initial prompt response saves it in this regard, despite the delay in January and February, which was excessive.

There is further mitigation of the respondent’s position in the fact that the complainant’s representative was told on February 14th that the matter was being dealt with and a reply would issue shortly but despite this she resigned on February 21st.

Her complaint fails therefore on two grounds.

There is nothing in the respondent’s conduct up to early January that would justify the complainant breaking her contract of employment.

In the period thereafter reviewed above the respondent could have done better but its failure to do so was not at the level justifying the complainant’s resignation. She knew the respondent was willing to hear the grievance and it was she who had contributed to the initial delay in doing so.

This could not be regarded as exhausting the internal procedures; a necessity for a complaint of constructive dismissal.

Accordingly her complaint fails.

For the reasons set out above I do not uphold Complaint CA-10424-001 and it is dismissed.