Complainant

Respondent

Anonymised Parties

An Employee

A Company

Representatives

Self

Robin McKenna IBEC

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-00012347-001

06/07/2017

The complainant worked part-time in the store. She worked 25 hours per week. The day that she left, it was the straw that broke the camel’s back. It all started in 2016 when Ms. X joined the company. The complainant had no problems for the 10 previous years. Initially the work she was doing was in the home department. Before Ms. X’s arrival the complainant did all the table and window displays and was responsible for mechanising the stock. Following her arrival, the complainant was left to do the cleaning and dusting. Also, she noticed that when the reps came into the store Ms. X would follow her around listening to her conversations. She found that that made her feel very uncomfortable. On one occasion Ms. X shouted at her on the shop floor and used an aggressive tone. This was in front of costumers.

The complainant had an accident in work and hurt her foot. Prior to the accident, she alerted managers to the gap in the floor but they did nothing about it. She was out of work for six weeks. The day she returned, they fixed it. During that time the complainant brought in her weekly certificates. One day Ms. X threw it back at her and said “I can’t read that, go back and get another one.” The doctor told her it would be €30.00 for another one. She then told her that she hadn’t adhered to the policy in relation to sick certs and she said the accident was her own fault. The complainant has not filed a personal injury claim in relation to this accident. She was not disciplined in relation to her failure to comply with the sick leave policy.

In 2016, the complainant was caring for a transplant patient. She asked the store to keep it confidential as he was her ex- partner. Ms. X constantly spoke to her about it. She would say “how are things at home”. She told her that her personal life was just that, personal.

She requested a holiday for the 25.08. 2016, one day. Her son was starting Secondary school. He was suffering from anxiety. The request went missing. She re-applied and that went missing. She explained why she needed the day off to another store manager. Her request was declined. She accepted that it was marked off on the calendar because they were doing a stock take. She went into the office to talk to her team leader about it. He called the previous manager, who said “ah she would go to you Mr. Y wouldn’t she?” Ms. X did eventually give her a half the day off.

She complained about the footwear. She raised a formal grievance about it. She sent an e-mail in June 2016 because she just couldn’t wear the shoes. They are steel toed and when she hit her foot it damaged her heel at the back.

The complainant also took issue with the “search” system. The machine at the exit, picks staff randomly. Staff tap the machine and if the button turns red you have to be searched. She was leaving one day, the machine went red. A normal member of staff said ‘can I look in your bag.’ She said no as she wasn’t a manager. She then asked ‘what will I do? She said ‘just sign the sheet’ . The sheet is to identify the time and date of the search. When she came back she told Ms. X that she had refused permission to be searched. Ms. X already knew about it. She asked for the names of those who were permitted to carry out a search. Ms. X wouldn’t give her the names. The complainant stated that in her opinion, she shouldn’t be searched in front of customers. Following all that, it happened a second time. She was walking out the door. The button when red, Ms. X shouted at her “right pockets, here or in the back?”. She went to the office and the search was carried out there.

When Ms. X started, all staff had to have morning meetings. We were told that any grievances we had would be dealt with confidentially. She said she had concerns about the search button and favouritism. The next day Ms. X said “right who has issues?’. Nobody put their hands up. That information was supposed to be confidential. She felt betrayed.

Lots of the work she had done in the store would be changed around when she came back in for her next shift. She started to take photographs of her work to prove what she had done and how it had been altered. Other times when she started a shift the store would be in a mess. One day a staff member was helping her. She was supposed to stack cushions. She left a trolley with a large piece of plastic on it. The complainant said she couldn’t leave it there as it was a danger to children. She then said that the complainant had thrown all of the cushions on to the floor and said ‘you stack those up’. When questioned about it she admitted that she hadn’t. The next the complainant knew was that everyone was talking about her and her attitude towards others. They were saying that she had spoken aggressively to this staff member. The complainant refutes that allegation and states that she would never talk to a staff member like that. After that she just wanted to keep to herself. She asked if the rumours could be stopped. The next day her manager said nothing about it at the meeting. She felt like her concerns were being ignored.

On the 12.05. 2017, A sales assistant Ms. W said ‘What’s your problem with me?” She said “go and ask Ms. R (the sale assistant to whom the complainant allegedly spoke aggressively to). Ms. W said that she was going to have the complainant in the office. The complainant replies by saying ‘right let’s go then’. The complainant said that they needed to get Ms. R in to sort this out. Ms. W said she wanted an apology. She said that Ms. R was the one who had actually reported her to management. The complainant’s manager told her that he could and would make her associate the staff. Then he accused the complainant of nearly knocking Ms. W down. The complainant asked him to look at the cameras. He refused to. He seemed only to be worried about their feelings not the complainant’s. She was in a terrible state. She walked out. She went to her doctor and she was certified be ‘unfit for work due to stress’. She never went back. Her certificate expired on the 26.05.2018. She resigned from her position at the end of May. HR called her on the 29.05.2017 and said that they had received her resignation and asked her why she had resigned. She gave him a summary of the situation. He asked her to re-consider. The phone went dead. Then she got a call from the hospital in relation to a family emergency. After a few days, she called back. Her called was directed to a voice mailing system. She asked what her options were? She didn’t hear back from the respondent.

On the 31.05.2017 She got a text from a colleague saying that she had heard that she had left the job. She was upset because staff had already been told that she had left despite her being in talks with HR.

19.06. 2017 She asked for her employee files. HR asked to meet with her. A meeting was arranged in an hotel close to her home. HR suggested at that meeting that ‘certain staff could be removed from the store’. The complainant responded by saying ‘you would have to remove half the store.’ She then thanked him and left. She had no faith in the company.

She got employment in September, 2017. She minds a child for 24 hours per week. She got paid € 240.00.

She has applied for many jobs. Retail, cleaning etc. Whilst she is waiting for employment she is on social welfare. No documentation was available to support her efforts to gain employment.

On 26 July, 2016 an incident took place involving the Complainant and a team leader within the store in relation to an annual leave request made by the Complainant. Based on the information contained in the request form, the Complainant was rostered to be on annual leave for two days, 27 July and 2 August 2016. The Complainant reviewed the roster on the day before she was due to take annual leave and noticed the error. While the team leader was trying to resolve the issue, the Complainant became very confrontational and aggressive. The team leader contacted Ms X, Store Manager, regarding the annual leave. Ms X suggested that the Complainant should be given the leave if it was possible to accommodate her.

The Complainant had completed an annual leave request form six weeks earlier which included days at Christmas. In this form, she was booking three days, and included the three dates in the form mentioned above.

Ms. X met with the team leader and the Complainant on 4 August 2016 which led to a note being put on the Complainant’s file relating to the incident.

The Respondent has a system in place regarding random searching of employees’ bags. A “Randomiser” button is located in each store. As employees exit the building to go on breaks or at the end of their shift they press the button. If the button lights red, then they have been selected. This is generally done by way of a self search whereby they open and show the contents of their bag to the manager on duty or another trained person on duty. Failure to abide by this procedure is treated as an act of gross misconduct, in line with the Company’s Disciplinary Procedure.

On 3 August 2016 the Complainant pressed the randomizer button at the end of her shift. The button lit red, indicating that the Complainant had been selected. The Complainant refused to participate and left the building.

Ms. X met with the Complainant on 12 August over this incident. The Complainant said that the reason she didn’t participate was that she didn’t want another person looking in her bag. While this was a breach of the Company’s Disciplinary Procedure, Ms. X chose not to proceed with this course of action as it was very close to the incident involving the team leader. Instead a note was placed on the Complainant’s file.

In and around 24 April 2017 Ms. R,a sales assistant in the homewares section, raised a concern with the team leader regarding an incident involving the Complainant. However, this matter was resolved in an amicable way between the two individuals before there was a need for an intervention by management.

On 12 May 2017 there was an incident involving Ms. W, a sales assistant, and the Complainant. Ms. W felt that the Complainant had snubbed her the previous day. Ms. W sought the advice of her team leader Mr. H. Mr H arranged for Ms. W and the Complainant to meet in an office to discuss the issue. The meeting was brief with no resolution. Following this meeting the Complainant left the store.

The Complainant submitted her written letter of resignation on 24 May 2017 to take effect from 31 May 2017.

Mr Q, HR Officer, spoke with the Complainant by telephone on 30 May 2017. During this conversation he asked her to reconsider her resignation. During this call the line dropped. Mr was unsuccessful in contacting the Complainant on two other occasions. Mr Q wrote to the Complainant on 26 June, again asking her to reconsider her resignation and offering to meet with her.

A meeting took place in a local hotel in July 2017. During this meeting Mr Q gave the Complainant a copy of the Company’s Grievance Procedure and also asked her to reconsider her resignation and return to the store or she could move to another store. The Complainant told Mr Q that she was going to proceed with a constructive dismissal case.

The Complainant has not only failed to exhaust the Company’s internal grievance process, she never raised a grievance to any member of management in the first place.

The Complainant in this case did not abide by the grievance procedure outlined in her contract which states.

“If you have a grievance regarding your work or employment you must first raise the issue with your immediate Supervisor/Manager. If the matter is unresolved you may refer your grievance to the next level of management and ultimately to the Executive for a final decision. At all stages during the grievance procedure the employee must continue to function as normal until the final decision.”

The respondent has a Grievance Procedure in place to deal with complaints from staff. The Complainant could have raised her concerns by way of the informal procedure:

“In the first instance, the colleague should raise their issues with his/her immediate Manager or the next more Senior Manager if your grievance relates to your immediate Manager.”

In the event that the Complainant was not satisfied with the outcome of the informal procedure or if she chose not to follow that part of the grievance process, she could have made a formal complaint:

“If the matter cannot be satisfactorily resolved on an informal basis within one week, you may inform the HR Department in writing of your grievance who will endeavour to arrange a meeting within the next 7 days. The purpose of this meeting will enable you to give full details of your Grievance.”

The Grievance Procedure also contains an appeals mechanism:

“You have the right to appeal this decision within seven working days in writing, setting out the reasons for your appeal to the person that is outlined in your letter. You will then be invited to attend another meeting, after which you will be informed of the final decision.”

It is only after exhausting the above procedure should the Complainant have referred any complaint to an external party:

“In the event of the matter not being resolved internally, the matter should be referred through the normal industrial procedures.”

The Complainant did not, at any stage prior to her resignation letter, make any form of verbal or written complaint or seek the advice and support of the HR Department. The Complainant received training in the disciplinary and grievance procedures on 5 August 2014.

Most importantly, the Complainant failed to give the Company an opportunity to resolve any issues she may have had before resigning. During her telephone conversation with Mr Q and their subsequent meeting in June 2017, the Complainant was asked to reconsider her resignation. She declined as she had already decided to proceed with a case of constructive dismissal.

The Complainant has also stated in her complaint form that:

“I have had to attend the doctors for blood pressure which led to me collapsing on numerous occasions due to stress brought on me by the behaviour to me by members of management and staff.”

While management would have been aware of the personal pressures the Complainant was under in her personal life, at no stage did she ever bring to the attention of management that she had issues regarding her blood pressure. She never produced any medical letters or certificates which either stated or alluded to concerns over blood pressure. In fact, the only medical certificates that related to stress were for the two week period 12 to 31 May 2017. Similarly, at no stage did the Complainant ever collapse while at work or make management aware that she had collapsed on “numerous occasions”.

As referred to above, management within the store was aware of the personal pressures the Complainant was experiencing. Because of this the Company facilitated the Complainant to carry her mobile phone with her while on the shop floor, they changed her roster on numerous occasions and facilitated her to be off in order to attend hospital appointments with a family member.

The Complainant had two performance reviews in the months leading up to her resignation. These reviews, or “Steps” as they are referred to in Woodies, took place in October 2016 and again in January 2017. Both reviews were conducted by the team leader.

In the manager’s comments section from her review in October 2016, the team leader states:

“… has done some fantastic work in housewares over the last few months in revamping section. … is positive in her work as she seems to really enjoy revamps. She is great at using her initiative (Bribantia new bins). Would like to see her lift the social club off the ground as would be great for colleague morale. Would like to see her getting more involved in figures.”

In the manager’s comments section from her review in January 2017, the team leader states:

“….. uses her initiative in creating inspirational displays (Bribantia tables, Xmas). She did a fantastic job in organizing the Christmas party. She is great at greet and approach and goes above and beyond for customers and colleagues.”

It was this positive feedback that led to the Complainant receiving significant pay increases over the last three years.

The respondent has a mobile phone application in operation called “Kudos”. This application is available for all staff and serves two purposes. The first is for communication and enables the Company to keep staff up to date with what is going on. It includes access to, amongst other items, the Grievance Procedure, Disciplinary Procedure and Dignity at Work Policy.

The second purpose for Kudos is that it enables staff to be recognized for a job well done. Kudos can be done by way of peer to peer, employee to manager as well as manager to employee. In the period September 2016 to April 2017 both Ms. X and the team leader recognized the Complainant for some of the work she did in the workplace.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal 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 the 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”

7.—(1)

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

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

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”

The complainant herein stated that she had several issues during the course of her employment. Save for one, she did not utilise the respondent’s grievance procedure. She stated in evidence that she did have a copy of the respondent employee handbook and was aware of the grievance procedure. She said that by the time she had the meeting with Mr. Q in the hotel, her faith in the company had been destroyed. Having reviewed the evidence, I find that there are no supporting facts upon which the complainant could form such a belief. On the one occasion, she did raise a grievance, the matter was resolved to the complainant’s satisfaction. Furthermore, Mr. Q gave the complainant an opportunity to set out what she felt was required to facilitate her return to work. She did not engage with Mr. Q in any meaningful way. Her suggestion that he would have to ‘remove half the work force’ for her to return is not a reasonable or measured response. She made no further attempts to resolve the issue and did not consider the offer to move to a different store before walking out of the meeting. No evidence was adduced that could support the complainant’s decision not to engage in the internal process prior to filing her claim with the WRC. In the absence of any such evidence I can only conclude that she failed in her obligation to exhaust the internal process.

The respondent’s evidence that the complainant was a valued member of staff, who took it upon herself to organise staff events and was the subject of very favourable reviews is all documented and was not challenged by the complainant. In additional to the complainant’s failure to engage in the internal process, I can find no evidence that could lead me conclude that there was breach of the complainant’s contract or that it was reasonable in all the circumstances for her to terminate her own employment.

In all of the circumstances the complaint fails.

Constructive Dismissal. Obligation to exhaust internal grievance procedure.