FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CEDARGLADE LIMITED (FORMERLY PINEGLADE LIMITED) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TINA HLIBAN (REPRESENTED BY MARIUS MAROSAN) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00006881.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 13 June 2018. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim made by Ms Tina Hliban against her former employer, Cedarglade Limited (formerly Pineglade Limited), where she alleged that she was constructively dismissed. By Decision dated 24th August 2017, the Adjudication Officer held that the complaint was not well-founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Tina Hliban will be referred to as “the Complainant” and Cedarglade Limited (formerly Pineglade Limited), will be referred to as “the Respondent”.
The Complainant referred her case to the Workplace Relations Commission on 20th January 2017. The appeal came before the Court on 17th January 2018 and 12thJune 2018.
Background
The Complainant was employed as a Sales Assistant on a permanent part-time contract of employment at the Respondent’s Centra Supermarket based in Lucan, County Dublin. She commenced employment on 13th June 2012 and resigned from her employment on 18th October 2016.
Summary of the Complainant’s Position
Mr Marius Marosan, on behalf of the Complainant, submitted that the Complainant was constructively dismissed from her employment in circumstances where she alleged she had no option but to resign following an alleged unfair, harassing and bullying disciplinary procedure by the Respondent.
Mr Marosan asserted that the Complainant’s resignation from her employment met the criteria set down in section 1 (b) of the Acts which defines constructive dismissal as the termination of a contract of employment by an employee due to the conduct of the employer or where it was reasonable for the employee to terminate the contract of employment. He said that the Complainant makes her complaint pursuant to both tests.
The Complainant was informed on 31st March 2016 that her till had been €99.00 short on 28th March 2016 and that a disciplinary meeting would take place on 4th April 2016.
On 2nd April 2016 the Complainant was, without notice, called into the Manager's office to be shown CCTV footage of mistakes she had made by not scanning items at the till. Mr. Maorsan said that the Manager told her that he was "disgusted" and that the Complainant "disappointed" him. This upset the Complainant. She told him that she does not make mistakes and she disputed the assertion that a “short” was assessed or recorded on 28th March 2016.
A disciplinary meeting was held on 4th April 2016. Mr. Marosan said that the Complainant wanted the Assistant Manager to accompany her but at the time in question she was on a break. He said that she was rushed into the meeting. The Complainant was upset and confused at this meeting which lasted approximately five minutes. Minutes of the meeting were taken and a copy of same was provided to the Complainant thereafter. The Complainant disputes the contents of these minutes. On 7th April 2016 the Complainant was presented with a letter containing a verbal warning. The Complainant denied that the alleged shortages or mistakes occurred.
Mr. Marosan contended that given the lack of evidence of wrongdoing the Complainant found it impossible to defend her position or to respond adequately to the allegations made at the meeting and requested that the CCTV footage be checked again. On 12th April 2016 the Complainant hand- delivered a written appeal of her verbal warning to the Store Manager who said that he needed a witness to the delivery of the letter and proceeded to read it out in front of the Assistant Store Manager. Mr Marosan said that the Complainant found this demeaning and humiliating and a breach of her confidential information.
On 16thApril 2016 the Complainant was called to the Manager's office for a meeting and was informed that she needed to address her appeal to the HR Department. She was also informed that her till was short €20 on 14th April 2016.He said that this was denied by the Complainant and no evidence of the “short” was offered her. Immediately following the meeting, the Complainant returned to the shop floor. She felt ill and weak and collapsed. She was taken to hospital where she was diagnosed as having suffered a panic attack. She was detained in hospital overnight and was discharged the following day. She was recommended to take two days off and to attend her G.P.
Mr. Marosan contended that the Respondent had failed to follow fair and proper procedures in relation to the alleged wrongdoing. The Complainant was unable to cope with the repeated allegations of wrongdoing without any evidential proof being offered. He said that she was traumatised by the harassing and bullying way in which the Respondent dealt with the situation and the failure to adhere to proper procedures. She felt demeaned and humiliated.Due to the actions of the Respondent and the baseless allegations made against the Complainant her health and well-being suffered. The Complainant attended regularly with her G.P. and had a number of appointments with a Psychologist. She was certified as unfit to work due to stress between April 2016 and October 2016. In October 2016 the Complainant's G.P. advised the Complainant that she was fit to return to work, however, due to the ongoing HR issues a return to her previous position was not feasible and would be likely to exacerbate her symptoms.
Mr. Marosan said that the Complainant was subjected to repeated verbal and written warnings over the course of a two-week period. He said that the way in which the Respondent conducted the disciplinary procedures constituted a significant breach of the essential terms of her contract of employment. He also submitted that the actions of her Manager were impliedly in breach of the Company’s Anti-bullying and Harassment Policy.
Mr Marosan said that owing to the actions of the Respondent the Complainant suffered ill-health immediately and over an extended period. She was unable to attend at the location of the store for any purpose due to feelings of anxiety and stress. In such circumstances, he said that the Complainant had no option but to tender her resignation. She has been unemployed since that date and is actively seeking other employment.
Summary of the Respondent’s Case
Mr Conor O’Gorman, Ibec, on behalf of the Respondent, disputed the allegation that the Complainant had no option but to resign. He contended that the cessation of the Complainant's employment does not fall within the definition as set out in Section 1 (b) of the Acts.
He said that the Complainant was well liked and considered to be a good worker by her colleagues and peers. She had provided maternity cover in the scanning department from September 2015 until February 2016. In February 2016, the Complainant returned to her role as Sales Assistant whilst continuing to support the main scanning operator.
On 28thMarch 2016, the Complainant's till was short €99. The Store Manager spoke to her informally about the till shortage but she could not recall any issues. At this point, the Complainant was advised that the matter would be investigated further. Mr O’Gorman said that at the meeting held on 4thApril 2016, the Complainant could not provide any explanation for the till shortage other than that she may have given extra cash back. During this meeting, the Store Manager informed her he would check the transactions again before any decision was made.
On 7thApril 2016, the Complainant was invited to an outcome meeting based on the previous disciplinary meeting. This meeting was conducted by the HR Administrator and the Complainant agreed she was happy to attend the meeting without the Store Manger present. During the meeting, it was explained to the Complainant that the CCTV footage had been rechecked and the €99 was still unaccounted for and based on this she would receive a verbal warning. Mr O’Gorman said that the Complainant was given a copy of the verbal warning with the details of the right to appeal. The Complainant submitted an appeal in writing against her verbal warning. On 12th April 2016, the Store Manager informed her he could not address the appeal as he had been involved in the disciplinary meeting and therefore it would have to go to the next level of management.
Mr O’Gorman said that then on 16th April 2016, the Complainant was spoken to informally regarding another till shortage of €20 to establish if there had been any issues with the cashback procedure. This incident was not escalated to formal disciplinary action and no further action was taken. A short time later, she became faint at work and was hospitalised as a result. He said that the Complainant remained on certified sick leave until her resignation.
Mr O’Gorman said that on 25th April 2016 the HR Manager wrote to the Complainant acknowledging her appeal against her verbal warning and providing her with a copy of the contract of employment as she had requested. The letter outlined how the appeal could not take place whilst she was on sick leave but would be conducted once she was certified fit to return to work. He said that the Complainant's Solicitor wrote on 21stJune 2016 confirming that the appeal meeting was postponed until the Complainant was fit to return to work. The Complainant’s Solicitor made a formal Data Access request on 18thOctober 2016. That same day the Complainant tendered her resignation citing medical advice and health reasons for her resignation. Mr O’Gorman said that the Respondent wrote directly to the Complainant on 27thOctober 2016 offering her the opportunity to reconsider her resignation. The letter also pointed out to the Complainant that she had not had her appeal meeting. He said that all material prevalent to the Data Access request was sent to her Solicitor on 28thNovember 2016.
Mr O’Gorman contended that the Respondent acted reasonably and fairly at all times in accordance with its policies, best practice and appropriate conduct. The Respondent never suggested that there was any wrongdoing or dishonesty on the part of the Complainant. The till shortage of €99 was considered to be an honest mistake of a type which arises in any cash handling business. He submitted that the facts and circumstances of the events that led up to the Complainant's resignation did not satisfy the reasonableness test required to terminate the contract.
In conclusion, Mr O’Gorman asserted that the Complainant had failed to provide the Respondent with an opportunity to respond to her concerns by failing to fully utilise its grievance procedure or its Anti-Bully/Harassment Policy. He maintained that as such, the Complainant had not acted reasonably in resigning her employment as she had not"substantially utilised the grievance procedure to attempt to remedy her complaints"as held by the EAT inConway v Ulster BankUD474/1981 despite the fact that the Complainant had consulted a Solicitor prior to her resignation and yet no complaint was ever raised.
Mr O’Gorman said that following receipt of the Complainant's resignation the Responded had attempted to engage with her further by offering her time to reconsider and suggested waiting to conclude her appeal and gave her the option of raising a formal complaint under the grievance procedures. The Complainant declined all options and instead chose to resign.
Summary of the Complainant’s Evidence
The Complainant told the Court that it was not her decision to resign. She said that she resigned her employment on the advice of her GP who deemed her fit to return to work, however, her GP suggested that if she were to return to her position with the Respondent her medical condition may return.
The Complainant explained the end-of-day till process. She said that she checked the credit/debit cards transactions in the presence of the Supervisor, who also carried out a check. On the day in question, 28thMarch 2016, they discovered that her till was €99.00 short. The Supervisor advised her to report the shortage to Ms O’C, the inhouse Bookeeper. She said that in the six years that she worked for the Respondent she had never had a till shortage before.
The Complainant told the Court that on 1stApril 2016 Ms O’C then gave her a letter inviting her to a disciplinary meeting to be held on 4thApril 2016. She said that on 4thApril 2016 she wanted the Assistant Manager, Mr B, to represent her at the meeting, however, he was sent on his break at the time the meeting was due to take place. She said that Management insisted on the meeting going ahead without her representative. She said that everything happened so fast that she did not know what was happening.
The Complainant said that she was humiliated and upset when her appeal letter was read out by the Store Manager, Mr D, in front of the Assistant Manager, Mr B. She said that Mr. D told her that he was not the appropriate person to send it to and directed her to the Respondent’s HR Manager. She said that she did not get the chance at that time to send it to the HR Manager due to her hospitalisation and ensuing illness. She said that on 16thApril 2016 when she was informed that there was a shortage of €20.00 from her till she felt really embarrassed. She said that following that event, staff behaved differently towards her.
The Complainant said that she had difficulty in seeking employment elsewhere as she could not get a Reference from the Respondent. She eventually secured employment in November 2017 when a former Assistant Manager of the Respondent contacted her about a position in her current location. She said that she had since been promoted in that employment.
Under cross-examination the Complainant was asked if she or her Solicitor had ever sought a Reference from the Respondent, and she said that they had not.
She told the Court that she first engaged a Solicitor in June 2016 after she was advised by her GP to do so. She was asked if she had spoken to her Solicitor about resigning and she replied that she had and that her Solicitor initiated a grievance on her behalf with the Respondent. When directed to a letter from the Respondent dated 27thOctober 2016 expressing disappointment at her decision to resign in advance of concluding her appeal against the verbal warning which had been issued to her on 7thApril 2016, and inviting her to withdraw her resignation, she said that she had not received this letter. The Complainant explained that although the letter had been sent to her by registered post, she had not called to the Post Office to collect it.
The Complainant was questioned as to why she did not proceed with her appeal. She said that her GP advised her not to return to the shop as she was still on medical treatment. Her Solicitor advised her to await her return to work in order to process her appeal. She accepted that she had never met the person assigned to hear her appeal, Ms McHugh, HR Manager from Head Office, and accepted that she had no reason to believe that she would not get a fair hearing from Ms McHugh. She agreed that she had confidence in Ms McHugh to progress her appeal and accepted that there was no barrier to her pursuing her appeal.
The Complainant did not accept that she made a mistake on 28thMarch 2016 when there was a €99 short. She accepted that the card transaction slips showed that there should have been €860 whereas there was only €760 rung into the till. She said that she could not account for the discrepancy but she may have pressed the wrong button on the till. The Complainant accepted that the verbal warning, issued to her in written form dated 7thApril 2016, did not suggest dishonesty on her part.
In answers to questions from the Court the Complainant accepted that in her evidence she had stated that she had never had a till shortage before, yet it was put to the Complainant that the Respondent had supplied details to the Court showing that a final written warning had been issued to her in 2013. The Complainant explained that that warning concerned scanning issues, not till shortages. The Complainant accepted that at no stage did she lodge a grievance concerning the alleged inappropriate disciplinary procedure nor the alleged bullying behaviour by Management.
The witness accepted that from June to October 2016 when she resigned she was being advised by her Solicitors and there were communications between the Respondent and her legal advisors. She was also being advised by them in respect of her appeal. She accepted that her Solicitors were agreeable to await her return to work in order to progress her appeal.
The Complainant said that the final written warning she received in 2013 had expired after twelve months without any issue. She acknowledged that in 2016 she received one warning over till shortages and it was a verbal warning to expire after six months in accordance with Stage One of the Disciplinary Procedures. When questioned why she felt compelled to resign after Stage One of the Procedures had been applied, yet there was no issue when the penultimate stage had been applied to her in 2013, she stated that it was on the advice of her GP that she decided to resign.
Summary of Ms Cliona McHugh’s Evidence
Ms Cliona McHugh, HR Manager, on behalf of the Respondent, told the Court that she had been informed by Mr D, the Store Manager, that the Complainant wished to appeal a verbal warning issued to her in April 2016.
She said that on 18thApril 2016 she received an email from the Complainant regarding her appeal. She responded to the Complainant explaining that she would deal with the appeal when she was fit to return to work. She also supplied the Complainant with a copy of her contract of employment and Social Welfare Forms. The witness said that she set up an absence review meeting for 14thJuly 2016, however, the Complainant failed to attend.
Ms McHugh stated that she received a letter from the Complainant’s Solicitors dated 29th June 2016 acknowledging the Respondent’s acceptance of her appeal to take place on her return to work. The Solicitors sought details in preparation for the appeal hearing and sought the CCTV footage in relation to the allegations of till shortages. On 28thSeptember 2016 her Solicitors made a Data Access request and a reminder was made by letter dated 18thOctober 2016.
Ms McHugh said that by letter dated 28thNovember 2016 she sent the Complainant’s Solicitors a letter containing fifty two items of information following their Data Access request. She said that following this she heard nothing more from the Solicitors.
In cross-examination the witness said that the registered letter dated 27thOctober 2016 addressed to the Complainant was returned by An Post with an indication that it had not been called for. It was put to the witness that therefore the Complainant would not have been aware of the Respondent’s response to her resignation letter. Ms McHugh said that a copy of the Respondent’s letter had also been furnished to her Solicitors and that by the time the registered letter had been returned to her from An Post, the Complainant had referred her case under the Acts to the Workplace Relations Commission.
Findings of the Court
As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer be“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”as held inWestern Excavating (ECC) Ltd v Sharp[1978] IRL 332.
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving.
In constructive dismissal cases, the Court must examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must alert the employer to their situation in order to allow the employer an opportunity to rectify the problem before resigning. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign:Conway v Ulster Bank LimitedUDA474/1981.
The Complainant is relying on both tests to ground her claim.
(i)Was there a repudiatory breach of the contract of employment by the Respondent ?
- “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.”
The first question for the Court to decide, therefore, is whether or not, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment. This is a stringent test, which is often difficult to invoke successfully.
It is not suggested by the Complainant that the Respondent breached any express term in her contract of employment. It is, however, settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other as held by the High Court inCroninvEircom Ltd[2007] 18 ELR 84. In that case Laffoy J. adopted the reasoning of the House of Lords inMalikvBank of Credit and Commerce International SA(inLiquidation)[1998] AC 20.The Judge held that as a matter of legal principle every contract of employment must be deemed to contain a condition implied by law of mutual trust and confidence.
Having considered the Complainant’s evidence that the reason why she resigned was due to the advice given to her by her GP as her GP observed the state she was in each time the Doctor saw her. This, she said, had arisen due to the behaviour of the Respondent when it accused her of theft and treated her in a rude manner and failed to observe appropriate procedures. The Court notes that in her email to HR dated 18thApril 2016, shortly after she had been issued with a verbal warning, she stated the following: -
- “….recently for some unknown reason, I started receiving verbal and written warnings from my superiors. I was never presented any evidence for the allegations and instead I received rude answers and was told that the onus is on me to provide proof that I’m innocent. As the allegations related to theft, I will see myself forced to seek help from the authorities if the matters are not investigated and properly dealt with.
Also, I recently ended up in the hospital, I would appreciate if I could receive a copy of the incident report, as this happened at work.”
Contrary to the contents of her email to HR, the Court notes that she was given only one warning, a verbal warning, she was not given a written warning. Furthermore, the Complainant herself discovered the till shortage, which was confirmed by her Supervisor, and she was advised to bring it to Management’s attention. Also, the Court notes that she was never accused of theft/dishonesty but was asked to account for a till shortage of €99.00, which in the circumstances it would not be unreasonable for an employer to do. The verbal warning (which was recorded and copied to her) is headed “Verbal Warning” and states,inter alia:-
- “I confirm that this is a verbal warning against you for Till Shot(sic)(Monday 28th March 2016 for €99). Your record is being carefully monitored and failure to take note of this warning and a repetition of this misconduct will result in further disciplinary action.”
The Complainant claimed that the actions of the Respondent on 14thApril 2016 when she was called to the Manager’s office to discuss a till shortage of €20.00 which had occurred two days earlier were such that it caused her to have a panic attack which required hospitalisation. The Court is being asked to consider that the conduct of the Respondent was so reprehensible at this time that it goes to the root of the contract of employment and/ or shows that the Respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. The Court cannot accept this contention.
There was no evidence to suggest that there was an undermining of the relationship of trust and confidence between the parties. On the contrary, the facts suggest that both parties were actively engaged in dealing with the only grievance being pursued by the Complainant i.e. her appeal of a verbal warning. The Court notes, in addition, that no disciplinary action was taken on foot of the €20 till shortage. The Complainant’s Solicitors were in the process of gathering information/data concerning her appeal. Management were actively engaging in that process. Indeed, on the day that the Complainant tendered her resignation, her legal representatives had written to the Respondent seeking such information/data.
In all the circumstances of this case, the Court cannot accept that the reason cited by the Complainant for her resignation constitutes a fundamental breach by the Respondent going to the root of her contract of employment nor could any of the other matters referred to by the Complainant in her evidence, either individually or cumulatively, amount to such a fundamental breach of her contract of employment.
- (ii)Was the Respondent’s conduct so unreasonable that the complainant could not be expected to put up with it any longer ?
The Court accepts that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal seeLiz Allen v Independent Newspapers [2002] 13 ELR 84, Moy v Moog Ltd, [2002] 13 ELR 261 and Monaghan v Sherry Bros [2003] 14 ELR 293. See also the Determination of this Court inNew Era Packaging v A Worker [2001] ELR 122. However, in this case there are a number of factors which cannot excuse the Complainant. Firstly, the Respondent did have a grievance procedure in place, the Complainant had received and signed for a copy of the procedures at the commencement of her employment and her Solicitor was supplied with a copy. Secondly, despite being legally represented, she never made a complaint under either the Respondent’s grievance procedure or its Anti-Bullying Policy and she had been informed that her appeal would be dealt with on her return to work and this was accepted by her legal representatives as the normal practice. Thirdly, following her resignation, the Respondent offered her an opportunity to withdraw her resignation and allow the appeal to be pursued. While the Complainant did not pick up the registered letter from An Post, a copy of it was forwarded to her legal representatives at the time.
Having examined the facts as presented, the Court fails to see how any of the assertions made meets the standard of reasonableness required to substantiate a claim of constructive dismissal. From the evidence tendered by the Complainant, the Court has found no evidence to indicate that she made reasonable efforts to address her grievances before resigning.
The Court is of the view that the Complainant’s failure to make any complaint in relation to her treatment, prior to her resignation, is fatal to her claim of constructive dismissal.
Determination
Having carefully considered the case put forward by the Complainant, the Court takes the view that she has not satisfied either element of the test outlined above. Accordingly, the Court determines that the Complainant was not constructively dismissed from her employment. The Decision of the Adjudication Officer is upheld and the appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
13 July 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.