ADJ-00008294

Complainant

Respondent

Anonymised Parties

A Store Supervisor

An Opticians

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-00010996-001

26/04/2017

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

CA-00010996-002

26/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00010996-003

26/04/2017

The complainant was employed by the respondent since 2003 and held the position of store supervisor. The issue relates to an incident that occurred on 3rd September 2016 concerning cashing up procedures and a sum of money that went missing. The complainant is alleging Constructive Unfair Dismissal as a result of the actions of the respondent. The complainant also states that the respondent made an unlawful deduction from her salary in contravention of the Payment of Wages Act, 1991 and failed to provide her with the correct annual leave entitlements at variance with the provisions of the Organisation of Working Time Act, 1997.

The complainant contends that the actions of the employer left her with no option but to resign from her employment. The complainant stated that during refurbishments in September 2016 a sum of money amounting to €1830 went missing. The complainant stated that she followed the appropriate cashing up procedures on the day in question (3rd September 2016) albeit that they were temporary in nature due to the ongoing refurbishments. She stated that there were also upgrades taking place to the IT system and there were a lot of people on the premises at the time. In addition, the complainant stated that there was an awards ceremony on elsewhere that night and staff were getting ready to attend and were having drinks on the premises.

The complainant stated that the issue of the missing money came to light on 7th September 2016 and she was asked to attend the premises at 8am on 10th September 2016 to look for the missing envelope. The envelope was not found and the complainant stated that senior management held a number of meetings between 10th September and 15th September 2016 on the issue.

The complainant stated that she was called to a meeting with the senior management team on 15th September 2016 which resulted in a number of sanctions imposed on her. She stated that she was no longer allowed to cash up and the missing lodgement was to be repaid by herself and three other members of staff through the non-payment of their monthly bonus for September.

The complainant stated that she left the premises that evening as she felt unwell and very stressed. She stated that she was certified as unfit to work by her GP as a result of the stress of what had occurred and the suggestion that she was dishonest or incompetent. The complainant stated that she had also felt pressured into accepting the outcome of the meeting held on 15th September and on reflection did not agree with what was put in place to recoup the missing lodgement. The complainant stated that she wrote to management on 21st September 2016 outlining her dissatisfaction with what occurred at the meeting and confirmed that she was medically certified as unfit to attend work and would remain absent until she was fit to resume her duties. The complainant’s GP subsequently requested that the respondent should not make further contact with the complainant while she was absent on sick leave.

The complainant also stated in evidence that she had not been provided with the appropriate procedures or staff handbook and was unaware of the procedures she should have followed in relation to raising a grievance. The complainant stated that she attempted to raise her issues to head office but was unsuccessful in doing so.

The complainant stated that due to the actions of management and the breach of trust that occurred as a result of how she had been treated, she felt she had no option to resign and submitted her letter of resignation with effect from 3rd February 2017. The complainant stated in evidence that she has remained unfit for work ever since.

The respondent stated that it had confirmed at the very beginning of the investigation into the missing money that there was no suggestion that the money had went missing as a result of any dishonesty on the part of the complainant or her colleagues. The respondent acknowledged that there were refurbishments at the time as well as upgrades to the I.T. system and there were a number of people on the premises on the day in question. The respondent stated that the temporary cashing up procedures that were in place at the time were not followed as the money in question, was not locked in the cash box which should then have been locked in the designated place which the top team members and the complainant were aware of. The respondent confirmed that four other days’ lodgements were in the locked cash box which meant that at some point on 3rd September 2016, the proper procedures had not been followed.

The respondent stated that it wished to resolve the matter as informally as possible and had discussed the options available to it. The respondent confirmed it’s understanding that the meeting of the 15th September 2016 was not a disciplinary meeting and it felt that the offer of withholding the September bonus equally from the four staff members was the fairest way to resolve the issue. The respondent stated that the other three staff members had offered to forego the bonus and this was communicated to the complainant at the meeting on the 15th September 2016. The respondent stated that the complainant accepted the solution to the problem and signed her acceptance on the notes of the meeting.

The respondent confirmed that it received a letter from the complainant dated 21st September 2016 outlining her dissatisfaction at how she had been treated and confirming that she was certified medically unfit to attend work. The respondent confirmed that it replied the next day to clarify its position and to offer the complainant its continued support.

The respondent confirmed that the complainant remained on certified sick leave until her resignation in February 2017. The respondent stated that it had been hopeful that the complainant might have returned to work and that it had arranged a return to work meeting with her but a subsequent medical certificate and an instruction from the complainant’s doctor not to make contact with her, meant that this was no longer possible.

The respondent stated that it still has a vacancy for the complainant if she was willing to accept the offer of employment, either in the store where she previously worked or she could choose from two other locations.

In relation to this complaint I find as follows:

The complainant was the store supervisor on the day in question. There were many people on the premises that day yet the complainant was the senior person in charge of following cashing up procedures. Ultimately the day’s lodgement was not placed in the cash box as if it were it would have remained with the other 4 days’ lodgements that were in the locked cash box. On that basis I find that at some point on 3rd September 2016, the appropriate procedures were obviously not followed.

The respondent stated that the meeting held with the complainant on 15th September 2016 was not a disciplinary meeting. I find that it may not have been intended to be a disciplinary meeting but the result of the meeting was that as well as foregoing the monthly bonus payment, the complainant was no longer in charge of cashing up. I find that this was unfair on the complainant and justified her feelings of distress and that she was now considered to be incompetent by senior management. After that meeting the complainant left the employment and never returned.

I find, however, that the letter submitted by the complainant on 21st September 2016 was not a letter of grievance. Having read its contents, it is a letter of dissatisfaction with a number of issues and confirmation from the complainant that she was medically certified unfit for work. The complainant did not seek to appeal that she was no longer in charge of cashing up or seek another meeting or further discussion in relation to what had been agreed at the meeting on 15th September 2016.

I find that there was an opportunity for the complainant to discuss her difficulties with the respondent on foot of its letter to her on 22nd September 2016. However, the complainant did not seek to resolve the issues and her GP asked the respondent in October 2016 not to make any further contact with her. This effectively prevented any hope of resolving the issues between the parties.

At the adjudication hearing, the respondent offered the complainant the opportunity to return to work in her previous location or a choice of two other locations if she so wished. I find that the respondent’s offer was a clear indication of the high regard the respondent had for the complainant and there were obviously no issues of trust or concerns relating to the complainant’s competence. The complainant clarified in response that she could not accept the offer as she felt that the trust between the parties had broken down.

Constructive Dismissal

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.”

In all of the circumstances of this case, I do not find that the respondent behaved in such a way that left the complainant with no option but to resign from her employment.

Having carefully considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I declare that the complaint of alleged Constructive Unfair Dismissal is not well founded.

The complainant stated that the respondent made an unlawful deduction from her salary when it withheld her monthly bonus in September 2016. The complainant stated that the withholding of the bonus was a means by which an amount of money that went missing was recouped by the respondent. The complainant stated that four staff members in total had the bonus withheld. The complainant stated that although she signed her agreement that the bonus would not be paid, she felt pressurised into doing so and is of the view that the respondent did not have the right to withhold the payment.

The respondent stated that the bonus in question is discretionary in nature and the complainant’s contract of employment provides that it can be withdrawn at any time. Notwithstanding the discretionary nature of the bonus payment, the complainant provided her written agreement that it would not be paid to her in September 2016.

In relation to this complaint I find as follows:

The respondent withheld payment of a bonus payment in September 2016. The respondent stated that salaries are paid on or around the 26th of each month. In that case the unlawful deduction would have taken place on or around the 26th September 2016. The complaint was lodged to the Workplace Relations Commission on 26th April 2017, some seven months after the deduction/non-payment of the bonus. This is outside the prescribed time limit for the referral of complaints.

Time Limits

Section41(6) of the Workplace Relations Act, 2015 states as follows in relation to time limits:

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.

Accordingly, and in compliance with the provisions of the legislation, this complaint was submitted out of time.

Having considered the submissions of both parties, I declare that the complaint is out of time and is therefore statute barred.

The complainant stated that she had not received her outstanding annual leave entitlements when her employment ended in February 2017.

The respondent acknowledged that annual leave entitlements were not discharged to the complainant as a result of an administrative error. The respondent confirmed that payment of €1,275 would be discharged to the complainant and a breakdown of that figure would also be provided.

I note the commitment given by the respondent to discharge a payment of €1,275 and a breakdown of those figures to the complainant in respect of outstanding annual leave entitlements.

If it has not already done so, the respondent is directed to discharge the payment of €1,275 to the complainant in respect of outstanding annual leave entitlements and an explanatory breakdown in relation to that amount within 42 days of the date of this decision.