Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Retailer

Representatives

Glenn Cooper, Dundon Callanan Solicitors

Maria Lane, BL, instructed by John Lynch & Company Solicitors

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-00013340-001

28/08/2017

The Complainant commenced her employment with the Respondent as a shop/deli/bar assistant on 1st September 2012. She was paid weekly €450 gross and worked 40 hours. She is claiming she was constructively dismissed. The Respondent disputes the claim of unfair dismissal and claims that the Complainant was dismissed for gross misconduct.

The Respondent disputes the date of dismissal as submitted by the Complainant. The Respondent submits that the Complainant was dismissed by email of the 11th April 2017. The Respondent does not accept the findings of the Appeal Officer and the decision to dismiss the Complainant of 11th April 2017 stands.

The Complainant submits that she was dismissed by email of the 11th April 2017. She successfully appealed this decision. The Appeal Officer found that the termination of employment was unfair, the appeal was allowed and the Complainant be reinstated in her role.

The Complainant’s solicitor submits that where an appeal against dismissal is successful, the effect of this successful appeal is to revive the contract of employment (see Redmond, Dismissal law, 3rd ed, 13.309). Therefore, as at the date of the appeal decision on the 16th June 2017, the Complainant’s employment was revived and the termination date of 11th April 2017 became null and void. He relies on Roberts v West Coast Trains Ltd. [2004] EWCA Civ 900 whereby the Court of Appeal held that the effect of the decision of the appeal (to impose the sanction of demotion in place of an earlier decision to dismiss) is to revive retrospectively the contract of employment terminated by the earlier decision to dismiss so as to treat the employee as if he had never been dismissed.

The Complainant submits that up to 2016 relations with the Respondent were very good. However, several matters arose in the second half of 2016 and in the early 2017, including an incident involving alleged assault by the brother of the Director of the Respondent which led to some difficulties between the parties, although the Complainant always hoped these could be worked through.

By conversation and subsequent email on 5th and 6th of April 2017 the Director of the Respondent, Mr. C asked the Complainant to attend a disciplinary meeting which he said concerned a matter “of a sensitive nature”. No further detail was given at that time. There was subsequently a hearing on the 8th April 2017 which the Complainant took detailed notes of. At the hearing the Complainant was surprised to be accused of theft and was shown CCTV footage which the Respondent alleged showed the Complainant eating snack bars and having coffee without paying for it. Despite having no pre-warning of the allegations or the detail contained in CCTV and till receipts presented at the hearing, the Complainant refuted the claims strongly, noting that it was shop policy to have tea and coffee without charge and that any snack bars, etc. had been paid for in full. Nevertheless, in an email dated the 11th April 2017 the Respondent purported to terminate the Complainant’s employment on the grounds of theft. On the same day, the Complainant lodged her appeal. There followed emails about the conduct of the appeal. The Respondent appointed a Solicitor, Mr. M to hear the appeal and Mr. M sent a letter to the Complainant dated 22nd May 2017 stating that he was hearing the appeal and it would be a complete re-hearing. The hearing took place on the 31st May 2017 and Mr. M issued his decision on the 16th June 2017. Mr. M found as follows:

·        It was accepted by both parties that teas and coffees were complimentary

·        There was no definitive procedure in relation to when staff paid for snacks

·        The Complainant is credible when she says she paid for the items at the end of a shift or at the next shift

·        Th investigation carried out by the Respondent was not sufficiently comprehensive

·        The Complainant was not given a fair opportunity to defend herself

Mr. M’s finding was that the termination of employment had been unfair, the appeal was allowed and the Complainant should be reinstated in her role.

The Complainant submits that where an appeal against dismissal is successful, the effect of this successful appeal is to revive the contract of employment (see Redmond, Dismissal law, 3rd ed, 13.309). Therefore, as at the date of the appeal decision on the 16th June 2017, the Complainant’s employment was revived and the termination date of the 11th April 2017 became null and void. By email dated 16th June 2017 the Complainant wrote to the Respondent requesting details of her return to work. The Respondent did not reply until 21st June 2017 when Mr. C in his email merely stated that the matter should be referred to their solicitor, the Respondent took no steps to pay the Complainant or reinstate her to the roster. After over a month of this inaction by the Respondent, the Complainant had her solicitor send a letter to the Respondent and their solicitor dated 20th July 2017, noting that if immediate reinstatement did not occur by close of business on 24th July 2017 the Complainant had no option but to treat herself constructively dismissed. No response was received from the Respondent or their representatives, as a result of which the Complainant’s resignation took effect on 24th July 2017.

The Complainant had fully availed of the Respondent’s procedure by pursuing the appeal mechanism against the earlier dismissal. Having been reinstated to her position by the appeal officer appointed by the Respondent the Complainant, despite her request to be returned to duty, was not reinstated to her job and did not receive pay following the appeal decision. By 20th July 2017 the Complainant had been out of work and unpaid for over a month since the appeal officer’s decision and for over three months since the earlier termination which had been overturned in the appeal. The conduct of the Respondent was therefore entirely unreasonable and in breach of the employment contract and the Respondent’s own Disciplinary Appeal Procedure. Despite such unreasonable behaviour and breach of contract by the Respondent, the Complainant nevertheless made attempts to have the Respondent fulfil its obligations. The Respondent failed to take any action and therefore the resignation took effect. It is clear that the Respondent never had any intention of reinstating the Complainant, even though the appeal officer appointed by the Respondent had made the decision, under the Respondent’s own procedure, that they do so. In the circumstances, the Complainant claims that she was constructively dismissed as defined in Section 1 of the Unfair Dismissal Act, 1977, that her dismissal was unfair and that she is entitled to be compensated for this unfair dismissal.

The Complainant questioned the integrity of the two witnesses called by the Respondent. She informed that Ms M was a long-serving employee with many responsibilities. However, once new technology was introduced in the shop which Ms M was not quite up to date with, the Complainant took over most of her responsibilities. It is therefore submitted that Ms M would have some degree of acrimony towards the Complainant. In relation to Ms L, the Complainant submits that they have had some issues previously and she did not believe that M L would be sincere in her evidence.

The Respondent submits that the Complainant was dismissed on the 11th April 2017. The Respondents does not accept the finding of the external appeal officer appointed by the Respondent and therefore, argues that the decision to dismiss the Complainant of the 11th April 2017 stands.

The Respondent purported to terminate the Complainant’s employment on the grounds of theft arising from three named incidents of theft dated, Wednesday 15th February 2017, Saturday 18th February 2017 and Thursday 16th March 2017. At the disciplinary meeting held on Saturday 8th April 2017, the Respondent went to provide proof of the incidents of theft by showing various incidents of CCTV footage outlining the Complainant drinking tea/coffee but also consuming food/snack items e.g. snack bars which the employee did not pay for. It is the Respondent’s case that the food/snack items were not paid for by the Complainant. It is the Respondent’s case that at no point at the said meeting in April 2017, or since that time, has the Complainant specifically stated when she paid for the items which she clearly is seen consuming on the CCTV footage. It is the Respondent’s case that the Complainant at no point in time has shown any item in the extensive till receipts which she purports to relate the any item taken on any of the said dates. It was the Complainant’s defence that anything that was taken was paid for either later the day it was taken, at the end of that particular shift or at the time of her next shift working on the premises. At the end of the disciplinary hearing of the 8th April 2017, the Respondent made the decision to suspend the employee on full pay pending the outcome of a review of the disclosures made at the hearing. The Respondent later made a decision to terminate the employment of the Complainant and notified her of the decision by email on that day. The Respondent arrived at this decision on the basis of in particular reviewing all the till receipts and CCTV footage on the basis of the Complainant’s replies at the disciplinary hearing. The Respondent has three tills in the premises namely terminals 1 & 3 which operate in the shop part of the premises and terminal 2 operates in the public house part of the premises. The Respondent reviewed all the till receipts and in particular in relation to the dates in question, the Respondent reviewed the till receipts from 4.00 p.m. to 1.00 a.m. on the 15th/16th February 2017 on tills 1 and 3 i.e. the shift worked by the Complainant and then also reviewed the till receipts on tills 1 and 3 for the entire of the date covering the next shift worked by the Complainant. The Respondent followed a similar process for the other dates of the 18th February 2017 and 16th March 2017 whereby the till receipts for the entire of the relevant date for tills 1 and 3 and also the following date when the Complainant next worked her shift were reviewed in full by the Respondent. Prior to the matter proceeding to appeal, all of the till receipts were furnished to the Complainant with a copy of the CCTV. There appears to be some confusion as to this in the appeal before Mr. M when the Complainant, on more than one occasion, referred to her not having seen all the till receipts. The appeal took place on the 31st May 2017 and the Respondent raises the following items in respect of the decision of Mr. M:

a. The Complainant’s position at the appeal hearing was that she stated that she had paid for items at the end of the relevant shift or during the course of her next shift. The minutes taken at the

hearing accurately record that at the hearing the Complainant stated: “I pay after my work, I like to go home, bring my son andbuy more items in the shop. While doing so paying on occasion

for my treats and items I took to eat at lunch. I do it all together.”

b. Mr. M found in favour of the Complainant insofar as he appears to have accepted that she had not received the entirety of the till receipts/reports for the day of the relevant shift or the subsequent date and therefore could not prove when she had paid for the items. This is not the case. All relevant till receipts/printouts in the possession of the Respondent have ben

furnished.

c. The Complainant at the appeal hearing stated: “I would like to ask for all seven days CCTV footage. It was not given to me. It would demonstrate where I would put the money.” Mr. Mfound that the till records were not complete and they were notsufficient to prove or disprove the Complainant’s assertion anddefence that she paid for the items at a later time andsometimes at a later date.

d. The Complainant’s case at all times was that she paid for the items at the end of the relevant shift or at the end of the next shift that she worked. It was for that reason that the Respondent furnished

her only with the till receipts/printouts for those relevant dates. It is therefore incorrect to state that the Complainant was not provided with the full till receipts/printouts sufficient to prove that

she had paid at the end of her relevant shift or during the course or at the end of her next shift. In light of same, the Respondent has now gone to significant time and expense in preparing and

furnishing the till receipts/printouts for seven days (including the date of the relevant shift) including and post the relevant shift in question. For the avoidance of doubt, it is the Respondent’s case

that these are completely irrelevant and that it has always been the Complainant’s case until now that she paid for the items at the end of her shift or during the course of or at the end of her next

shift.

Mr. M found that the Complainant gave reasonable and plausible explanations for at least two of the transactions namely those contained in video 7 and video 12 of the CCTV footage provided. In

relation to video 12 dated 18th February 2017, the Complainant allegedly gave a coffee and a snack to a pregnant lady who was sitting in the bar and said items were paid for with a round of drinks

and would have been “rung into the bar till”. Mr. M was of the opinion that there was no way of knowing whether the transaction was rung in the bar till as the bar as transactions for that period were not provided. The Respondent maintains that a snack bar cannot be rung into the bar till as it is an EPOS till system and there is no provision for the ringing in of a snack bar in that particular till. The records for terminal 2 of the 18th February 2017 were provided at the hearing. These records were not available to Mr. M at the relevant time as it was not anticipated that the Complainant would make this allegation as it had not been raised by her as a defence before. However, it is apparent from the records that there could be no chocolate snack rung into the bar till as alleged by the Complainant at the appeal hearing.

The Respondent maintains that the Complainant’s employment was lawfully terminated after gross misconduct on behalf of the Complainant, namely theft. The CCTV clearly shows the Complainant taking the items complained of. The Respondent maintains that the Complainant has made vague assertions that she has paid for the said items at the end of her shift or when she later came in shopping with her son. However, these payments are not evidenced in the till receipts nor can any other employee of the Respondent substantiate said assertions.

Evidence of Ms M – employee.

Ms M has been 17 years with the Respondent. She claims that each item taken must be scanned and a receipt printed. Some employees have an account with the shop and can put it through it or can pay later. She stated that she has never seen the Complainant taking something and putting cash into the till.

Evidence of Ms L – employee. Ms L has been 2 year with the Respondent. She claims that the policy is that employees must scan the item, print a receipt and pay at the end of the shift. There is no option of putting cash into a till without recording it through the till. She stated that she has never witnessed the Complainant coming to the shop with her son and paying for items she would have taken previously.

Preliminary issue:

I note that in the instant case the Respondent submits that the Complainant was dismissed for gross misconduct and the dismissal date is 11th April 2017. The Complainant, on the other hand argues that her appeal against the dismissal was successful and therefore, it revived the contract of employment. As a result, the date of dismissal is 24th July 2017.

Section 14 of the Unfair Dismissal Act, 1977 stipulates that:”(1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.” I note that the Respondent’s Disciplinary Rules and Procedures outline in detail the disciplinary process. Point K(4) stipulates that an employee has the right to appeal against any disciplinary action. Thereafter there is a detailed description of the appeal process. The Respondent’s procedures stipulate amongst others “From time to time it may be necessary to appoint an external person to hear an appeal; such an appointment will be deemed a last resort and only used where absolutely necessary.” It goes on to say “…the result of the appeal will be made known to you in writing within five working days after the hearing. This decision is final.” (emphasis added).

In Roberts v West Coast Trains Ltd [2003] IRLR 788 referred to by the Complainant’s representative it was held that where a contractual disciplinary procedure permits the employers, an appeal, to impose the sanction of demotion in place of an earlier decision to dismiss, that demotion does not involve the termination of the existing contract of employment or the entering into of a new contract. The effect of the decision on the appeal is to revive retrospectively the contract of employment terminated by the earlier decision to dismiss so as to treat the employee as if he had never been dismissed. At paragraph 24 Mummery LJ said: “(6) It was within the terms of that contract that the appeal decision was taken. It was not necessary to effect an express reinstatement to the position of chef previously held by him, nor it was necessary to make an offer to him to enter into a new contract in order to continue Mr Robert’s contract of employment.”

In McMaster v Antrim Borough Council [2010] NICA 45 the claimant utilised the contractual appeal procedure, which stated that an employee could avail of a further right of appeal to an external agency Labour Relations Agency (LRA) and its decision will be final. The employer refused to implement the determination of the LRA. Subsequently, the Court of Appeal considered whether or not the effect of a successful resort by a claimant to a contractual appeal procedure can, of itself, revive the contract of employment. The Court of Appeal allowed the appeal. Relying on Roberts v West Coast Trains Limited [2004] IRLR 788 the Court regarded the effect of successful appeal against an earlier dismissal actually reviving, retrospectively, the contract of employment terminated by the earlier decision to dismiss. The Court considered that the fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings in the initial hearing. Mr McMaster had a contractual right of appeal and the contract specifically provided that the decision of the LRA would be final and binding on both parties. The appellant exercised that right of appeal and obtained a successful outcome. The Court held that, “as a matter of principle, it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing an employee the right to resort to such an agreed procedure or by rejecting an outcome considered to be adverse to his or her interest…”

The Court held that, if a contractual disciplinary appeal succeeded: “… the employee is reinstated with retrospective effect. As the appeal decision has been taken within the terms of the relevant contract, it is not necessary to effect an express reinstatement to the position previously held by the employee, nor is it necessary to make an offer to him to enter into a new contract in order to continue the contract of employment. If the contractual appeal fails, the summary dismissal takes effect from the original dismissal.”

The legal result of Mr McMaster’s successful appeal is that the contract must be regarded as being reinstated at the date of the successful appeal. The refusal by the council to accept the contractually binding result of the appeal could be regarded as a repudiatory breach of contract.

In UPC Communications Ireland Limited (Now Virgin Media Ireland Limited) v ETA and Ann Marie Ryan [2017] IEHC 567the High Court stated that in this jurisdiction the date of dismissal, where there is an internal appeal, is a matter to be decided by the appropriate authority.McDermott J. stated as follows:“In my view, the point relied upon by the applicant that the initial dismissal is the one from which time must be deemed to run has yet to be determined in this jurisdiction and is not at this stage to be regarded as clear-cut and well-settled as to justify the quashing of the Tribunal’s decision. The issue falls to be determined definitively by the Employment Appeals Tribunal and, if appropriate, by the appellate courts in which the appropriate jurisdiction is vested by statute.”

I have considered all the relevant evidence that was laid before me, both before and in the course of the hearing. I find that the decision of the Appeal Officer, made pursuant to the Respondent’s own procedures to reinstate the Complainant resulted in continuation of the original contract of employment and therefore, the date of dismissal is 24th July 2017.

Substantive issue:

S.8 of the Unfair Dismissal Act, 1977, as amended provides for making complaints regarding unfair dismissal in contravention of S.6 of that Act. For a claim of constructive dismissal to be properly brought under the Act, the Complainant must satisfy the definition in Section 1(1)(b) of the Act, which 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 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 in constructive dismissal lies with the Complainant. In Allen v Independent Newspapers (Ireland) Ltd. 2002 ELR 84) it was held that the onus is on the Complainant to prove his case and the test for the Complainant is whether it was reasonable for him to terminate his contract.

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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.”  In Harrison v National Engineering and Electrical Trade Union UD 406/1987 the Tribunal held that failure to pay wages was a fundamental breach of contract. In Byrne v RHM Foods (Ireland) Ltd UD 69/1979 it was determined that “the total isolation of the Complainant amounted to an undermining of the relationship of confidence and trust between the responded and the Complainant, such as to go to the root of the contract”. The reasonableness test assesses the conduct of the employer and whether it “…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.” According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:“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.” This definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances. [2017] IEHC 567The Complainant must have acted reasonably in tendering her resignation. Redmond (2007) argues that ‘there is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee’s resignation. 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’.[1]

In the case before me the Complainant has successfully appealed the decision of the Respondent to dismiss her. The decision was issued by the Appeal Officer appointed by the Respondent in writing on the 16th June 2017. On the same day, the Complainant contacted the Respondent by email requesting clarification as to when will she be returning to work. The Respondent replied also by email on the 21st June 2017 to inform her that they have now formally instructed their solicitor to act on their behalf and all matters should be forwarded to him. The Complainant’s solicitor has sought to engage with the Respondent’s solicitor to no effect and subsequently, on the 20th July 2017 he wrote to the Respondent and their solicitor informing both that unless they confirm no later than close of business on Monday, 24th July 2017 that the Complainant is reinstated to her position she will have no option but to consider herself as having been constructively dismissed. The Respondent failed to take any action. The Respondent submits that they have some concerns in respect of the appeal hearing and the conclusions reached by the Appeal Office and chose not to accept his findings.

I am satisfied that the Complainant availed of the Respondent’s procedure by pursuing the appeal mechanism. Having been successful in her appeal, the Complainant contacted the Respondent inquiring about her return to work. In the absence of any commitment from the Respondent the Complainant’s representative contacted the Respondent’s solicitor as requested by the Respondent. However, no reply was received. I find that it was reasonable for her to have lost her faith and confidence in her employer and terminate her employment with the Respondent.

 I find the above to amount to grounds for the Complainant to consider her contract of employment repudiated or that she had no choice but to resign.

I heard evidence relating to the effect the dismissal had on the Complainant and her family. The Complainant and her family live in a small village where the Respondent is located. The Complainant highlighted the effects of reputational damage in such circumstance. I note that the Complainant is living in a location where employment is scarce. I note that she has not secured a new employment since her dismissal despite making considerable effort. She recognised that commuting may be necessary while doing so. She has secured a job from June 2018 subject to the successful completion of a specific course. With little prospect of employment due to scarcity of jobs in the area the Complainant enrolled in the required course to upskill.

Having given careful consideration to the evidence adduced and the submissions made by the Parties having regard to the findings and conclusions arrived it is my view that it was reasonable for the Complainant to terminate her contract of employment.

I note that the Complainant has been suffering financial loss from April 2017. She is receiving social welfare payments. The amended Unfair Dismissals Act is clear that such social welfare support should not be taken into account in assessing ‘financial loss’. I accept that the diminished opportunities for the Claimant to find other work could be, partially at least, attributed to the action of the Respondent, particularly in respect of the reputational damage. It is unlikely that the Complainant will secure another employment before the completion of the course in June 2018 by which time she will be 59 weeks out of work.

I consider an award of €18,000 (40 weeks x €450) as being just and equitable having regard to all the circumstances. The Respondent is therefore ordered to pay the Complainant a total of €18,000 in compensation (subject to any lawful deductions) within 42 days from the date of this decision.

Unfair dismissal-constructive dismissal-appeal-revival of contract- date of dismissal