Complainant

Respondent

Anonymised Parties

Administrator

Employer

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-00017488-001

17/02/2018

The Complainant seeks adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977 and in particular the Complainant claims they had to leave the job due to the conduct of the employer and others within the workplace.

The Complainant was employed as an Administrator from the 16th March 2015 with the Respondent Company and was paid €25,0000.00 (gross) per annum from July 2016 onwards and worked approximately 35 hours per week. The Complainant was on a job bridge with the Respondent Company six months prior.

In the circumstances of this matter, the Complainant submitted that the Managing Director (hereinafter referred to as the MD) told her on or about the 21st August 2017 that her current employment was effectively gone and the only options were redundancy, reduced hours or upskill and maintain website. The Complainant submitted that she was prepared to upskill and maintain the website, however, prior to taking up annual leave, the Complainant was informed that upon return to work her hours will be reduced to two and a half days. Upon the Complainants return to work on or about the 13th September 2017, a full time employee had been recruited and had taken over a number of the Complainants responsibilities. At this juncture, the Complainant found the atmosphere in the work place very tense and stressful.

The Complainant sent an email dated the 27th September 2017 to the MD indicating her concern in relation to the reduction of her working hours and other issues. Ultimately, the Complainant believed she was being bullied out of her position and concluded that she was effectively being constructively dismissed. The MD acknowledged receipt of this communication and offered to have a formal grievance meeting to discuss the matters of concern.

Following said meeting, the Complainant was informed latterly by a colleague that her hours were being reduced and emailed the MD on the 18th October 2017 that she did not agree to a further reduction of her working hours and concluded that this was all leading to her constructive dismissal.

Correspondence, in the form of emails, ensued between the Complainant and the MD until the 20th November 2017 when the Complainant indicated that she was resigning from the Respondent Company as she was very unhappy with the imposed changes on her terms and conditions and had been left with no alternative. The MD responded on the 22nd November 2017 that he would like to discuss the situation before accepting the Complainants notice and following discussion of same the Complainant indicated, on the 24th November 207, that she would remain in her current employment and the MD acknowledged same on the 12th December 2017 and also noted the Complainants ongoing concerns.

There follows correspondence, in the form of emails, between the parties in relation to a number of matters but in particular to   payment for bank holidays. Following ongoing stressors, as alleged, the Complainant attended her general practitioner and took sick leave from the 7th January 2018 for two weeks due to severe hypertension which had been exacerbated by stress in work. On the 12th January 2018, the MD proposed an informal welfare meeting to establish the nature and extent of her ongoing illness. The MD further proposed that, although the Respondent Company does not operate a sick pay policy, a discretionary payment would be made based on the nature and circumstance of the medical certificate provided.

On the 21st January 2018 and following a further attendance with her General Practitioner the Complainant offered her resignation having had time to consider her position and her ongoing health issues. The MD proposed on the 23rd January that the Complainant defer her decision to resign until they have their, as previously suggested, welfare meeting. Ultimately, the Complainant decided not to avail of such a meeting and requested the Respondent Company to accept her resignations as of the 21st January 2018.

The Complainant submitted that following the aforementioned difficulties she encountered and the toxic atmosphere in the workplace she believed she had no alternative but to resign her position with the Respondent Company.

The Complainant took up employment as an administrator with a freight company on the 22nd January 2018.

The Respondent Company sells and distributes medical equipment in the Republic of Ireland and Northern Ireland.

It was submitted that the Respondent Company experienced a significant loss of business in or around 2017 and that was the reason for introducing short time working hours. The Respondent Company indicated that it was necessary to try and drive the business using web based business and that was the rationale for hiring an individual who had good experience in managing websites and developing them. Along with this new employee the Respondent Company’s workforce consisted of the MD, the Complainant and one other individual.

In relation to the specific allegations made by the Complainant, the Respondent Company did not believe there was a toxic atmosphere in the workplace but accepted there could be tensions and difficulties within such a close working environment.

The Respondent Company accepted the Complainant did not have a contract of employment and further accepted there was no employee handbook or policies in relation to grievance procedures and the various attempts made to resolve the ongoing matters of concern to the Complainant were on an ad hoc basis.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

In the circumstances of this matter, the Complainants 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. The Complainant 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”

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment.

On a full assessment of the facts I can find no evidence to suggest that there was a significant breach going to the root of the complainant’s contract of employment (if any). In those circumstances, I must ask myself, was it reasonable in all of the circumstances for the complainant to terminate her contract of employment.  

The complainant took issue in relation to the manner in which the Respondent treated her within in the parameters of the workplace, the ongoing reduction of her working hours, the employment of another individual who took over some of her responsibilities and her frustration with payment for bank holidays   and whilst I have the utmost sympathy for the complainant and the circumstances she found herself in, I find based on the legal requirements that the complainant was not justified in terminating her own employment as, in the circumstances of this matter, I cannot find that the Respondent Company conducted itself or their affairs so unreasonably that the Complainant was justified in leaving

Accordingly, this complaint (CA-00017488-001) fails.

I find that the Complaint (CA-00017488-001) made pursuant to Section 8 of the Unfair Dismissal Act 1977 fails.

Constructive Dismissal