Complainant

Respondent

Anonymised Parties

An Accounts Administrator

A Computer Company

Representatives

HRS Consultants

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-00015596-001

06/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00015596-002

06/11/2017

The complainant had been employed by the respondent since 2004.

In the course of her maternity leave in 2017 the company moved its base giving rise to the complaints.

The complainant commenced her maternity leave at the beginning of January 2017.

She says the respondent company went into examinership shortly afterwards and was acquired by a new owner in February.

In July she gave the respondent notice that she intended to avail of the additional period of sixteen weeks maternity leave which would have expired at the end of October 2017.

As this date approached she contacted the respondent to be given the first hint that there had been changes and she was told that there ‘were a few matters that would have to be discussed’.

She contacted the respondent a few times and two weeks before her return to work date she was told that the company had moved from Navan to Blanchardstown.

She met the respondent on October 24th with her representative and she outlined the difficulties for her associated with the new work location; primarily from the point of view of her child minding arrangements.

Her representative wrote to the respondent on November 2nd stating that the complainant ‘had no option but to resign her position’ with the respondent. The letter referred to the meeting of October 24th and complained about the ‘take it or leave it’ attitude of the respondent.

The respondent replied on November 7th saying that it was ‘open to a second meeting…in order to come to a mutual agreement of how both parties can move forward’.

November 28th was suggested as a possible date for a further meeting but there was an issue about the venue for the meeting.

The complainant did not get a reply and on November 6th and January 11th separate complaints were lodged with the WRC. (This Decision relates to the first of those complaints.)

The complainant says that she was constructively unfairly dismissed and also that her rights to retain her conditions of employment under the Transfer of Undertaking Regulations were not preserved.

She states that she was not given the benefit of any information or consultation about the change of ownership which took place in February 2017.

The respondent did not attend the hearing.

No explanation was offered for the failure to do so.

The first 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 the termination of any 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.

The most common complaint under the Act is when an employer has terminated the employment and these are then the tests as to whether the dismissal has been a fair one.

In general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but 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 Dunnes 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.

The EAT has made it clear in a series of decisions, and followed by the Adjudication service, that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above).

In Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant did not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.

These are the criteria against which a complaint of constructive, unfair dismissal must be assessed.

Reviewing the sequence of events in this case, things moved very rapidly indeed.

The complainant gave notice of her intention to return in mid-October and at a meeting on October 24th was given the news of the fact that the company had moved.

By November 2nd she had resigned and four days later the matter was referred to the WRC.

The respondent replied on November 7th saying that it was ‘open to a second meeting…in order to come to a mutual agreement of how both parties can move forward’.

November 28th was suggested as a possible date but no meeting ever took place. The complainant’s representative sent a letter on November 27th, almost identical to that sent on November 2nd re-stating the complainants’ resignation. The effect of this was described as being ‘forthwith’ even though notice had been given of her resignation three weeks earlier in the letter of November 2nd. The complainant herself also submitted a letter of resignation on November 27th.

In between the respondent had, on November 7th offered to meet the complainant again with a view to reaching the ‘mutual agreement about how the parties can move forward’ already referred to.

It is hard to know what strategy was being pursued by the complainant in, first of all resigning but continuing to engage with the respondent as if nothing had happened.

There can be fewer more hazardous hostages to fortune in the world of employment law than a complainant’s belief, and assertion that they have ‘no other option’ but to resign her employment.

The citations above make it clear that when an employee genuinely ‘has no other option’ they may be entitled to do so and may succeed in a case of constructive dismissal.

However, it must be demonstrably provable that there is ‘no other option’ and that a complainant has exhausted all possibility of resolving whatever issues have given rise to the conflict.

That has not happened in this case.

It is not clear why the second meeting offered by the complainant on November 7th did not take place and not very much evidence of effort on the complainant’s part to bring it about. But, somewhat extraordinarily, she (through her representative) had already resigned the day before.

Even if one were to take the later date of November 27th when both she and her representative again submitted letters of resignation I would not find that she had sufficiently exhausted the process of seeking to resolve matters as required by the authority above to justify a resignation.

The complainant did not actually return to work on the due date in any event because of what happened.

It may have been an unsatisfactory sort of state of ‘limbo’ for her but there seems little reason why her de facto continuation on unpaid leave might not have survived whatever few weeks more it may have taken to get the ‘mutual agreement’ referred to by the respondent.

The travel requirement being imposed on the complainant is not insignificant. It is a distance of about forty-six kilometres in each direction with travelling time of an hour per day, with undoubted additional inconvenience in relation to her parenting obligations.

However, there might have been several options for resolving these difficulties which would not have resulted in the complainant losing her employment.

Her failure to explore those possibilities is fatal to her case. Her resignation was peremptory and contrary to what she claimed she did have other options which she failed to pursue.

Regarding her complaint under the TUPE regulations, according to the complainant’s evidence the transfer took place in February and it was not known when that transfer of the workplace actually happened.

Similarly, there was no evidence as to the connection, if any, between the Transfer of the Undertaking and the change in the location of the business. The Regulations require that an employee’s rights transfer as a matter of law on the date of the transfer.

They do not exclude the possibility of normal business changes unrelated to the act of the transfer in due course, at which point the usual rights of an employee are triggered. Similarly, even though the rights of a person on maternity leave to return are protected, there is no requirement that the position be absolutely frozen, or that a business may not undertake change or reorganisation of one sort or another.

Nonetheless, the proposed change in the location of the workplace should have been the subject of notification to the complainant. The respondent had communication from the complainant in July and October and yet she was not told about the change until October 24th, 2017 when, it seems clear, the move had already been made.

However, there was insufficient evidence to suggest any breach of the Transfer of Undertakings Regulations and this complaint is not upheld.

For the reasons set out above I do not uphold complaints CA00015596-001 or 002 and they are both dismissed