Complainant

Respondent

Anonymised Parties

A Deli Counter Manager

A Convenience store

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-00012684-001

20/07/2017

The Complainant attended with a friend and advisor Mr. CM and I was provided with a written submission together with some documentation.

The Complainant understood that the burden of proof rested with her in circumstances where she had tendered her own resignation.

The Respondent was represented by the owner of this convenience shop Mr. K.

The Complainant resigned her job of 9 years in circumstances where she says she was not able to continue working there.

The Respondent resists the argument that this is a case where a constructive dismissal arises. The Respondent does not accept that it has conducted itself in such a way that the Complainant had no alternative other than to resign her position.

I have carefully considered the evidence adduced in the course of this hearing. Both parties were given an opportunity to make their case and both were given an opportunity to dispute and/or challenge the evidence of the other.

The Complainant had been with the Respondent company since 2008. The Complainant had started off on the sales team and had worked herself up to Deli Supervisor in 2012 with an appropriate raise in salary. In 2016 the Complainant worked about 40 hours per week and her salary for 2016 shows that her earnings are commensurate with a 40 hour week at the rate of €10.30 per hour.

The Complainant gave evidence that she was being given fewer hours on a weekly basis since the start of 2017. The Complainant showed me her first four monthly payslips for 2017 and I noted that there had been a drop of €486.00 for the first four months when compared with the previous year. This represents a drop of 47 hours in the first four months – or about 3 hours a week on average. The Complainant relied on and needed her income, and any drop off was significant to her. The Complainant believed that the owner was showing favouritism in distributing shifts. In particular, the Complainant believed the owner’s daughter was being given more hours and getting the Complainant’s hours.

The Respondent indicated that he had no active policy to give the Complainant less hours. The original Contract of Employment stipulated a fifteen hour week, but this had increased over the 9 years of employment and the Respondent, by 2017, had the Complainant as a full time member of staff. If the Complainant was getting less than she thought she should be getting, the Respondent owner said she did not raise this issue with him. He said he had a lot of full time and part time staff and he was in the practice of distributing work shifts fairly, so that he could please as many people as possible. The Respondent had had no difficulty with the Complainant and had no idea that she was unhappy. The Respondent said that he was limited in what he could give to the Complainant who (having moved house) was unable to work after 3pm in the afternoon. The Employer indicated that this was not particularly convenient to him but that he was willing to accommodate this Employee as much as possible.

There was a staff handbook which contained a standard Grievance process. This convenience store was a franchise so that the Staff handbook was introduced and governed by the best policy of that franchise. In any event, the Grievance procedure was not invoked by the Complainant.

The Complainant did raise her issues with her line manager (Me.E). However, the evidence appears to be that the Complainant was more concerned that there was bad feeling at the Deli section and she complained that the “girls” were gossiping and giving out about her. Ms. E facilitated a gathering of the relevant staff that allowed for the Complainant to air her difficulties with the rest of the Deli team. The outcome seems to have been relatively successful, with the Complainant stating that she was happy that differences had been cleared up. Ms. E said that whilst the Complainant did raise the issue of the reduced hours of work, she was much more concerned about her relationship with her colleagues.

Ms. E was not responsible for assigning shifts and she conceded that she did not mention this issue to Mr. K the Employer.

Within a week of the gathering of the staff aforementioned, the Complainant came back to Ms. E and announced that she was resigning her position. Ms. E indicated that the Complainant again cited difficulties with other staff, a reduction in her hours but importantly she says that the complainant stated that she had found alternative employment in a new discount shop in the same area. Ms. E says that the Complainant specifically said that she would be getting all the work she wanted at this new job. Ms. E advised that the Complainant should work out the rest of the week. The Complainant did not return to the workplace after that date – May 11th 2017.

There is no doubt that the owner Mr. K was not on the premises that day nor for the next few days as he was away on annual leave. On his return, it became clear to him that the Complainant had left and he was under the impression she had left to take up other employment.

The Complainant’s case is that she left the workplace in the manner that she did, because of the difficulties that she was experiencing with other deli staff. In her evidence, the Complainant did not fully articulate the problems she was having with the other staff members and I formed the impression that it had more to do with what she thought they were saying about her than what she knew them to be saying about her. The Complainant fully accepted that she walked into immediate and alternative employment though this position did not last. The Complainant has been certified by her doctor as having psychological distress since May of 2017 and this has meant that the Complainant has not been available to work for some time.

As previously stated, the onus is on the Complainant to establish that the resignation was not voluntary and this amounts to a high standard of proof to be borne by the Complainant. The Complainant must demonstrate that her decision to quit her job was the only reasonable course of action she could take, in light of her Employer’s conduct. In considering all the facts, I find it hard to see that the Complainant’s decision was reasonable. I fully accept that the Employer/Owner Mr. K had no idea that the Complainant was annoyed by the perception of reduced hours. In fact, his evidence was that the hours were not reduced and I had to agree on the evidence (payslips, P60s etc.) that there was no significant drop off in salary. The Complainant never addressed this issue with Mr. K. The Complainant never triggered a Grievance on this issue or any issue – including the difficulties she may have been having with the other ladies working the deli counter. Mr. K was quite simply unaware that the Complainant was unhappy and this was because the Complainant never said anything to him.

Whilst the Complainant may have said something to her line Manager Ms. E, this lady did not perceive a sense of urgency and Ms. E believed that she had sorted out the problem the Complainant said she was having with the deli staff. Ms. E was very clear that she understood that the Complainant was leaving because she had better alternative employment elsewhere.

On balance, I find that the Complainant herein was not Constructively dismissed by reason of the conduct of her Employer. I find that her resignation was primarily motivated by another job offer and whilst the Complainant may have had issue with the hours she was working and the staff she was working alongside, this Employer was not made aware of these issues and was afforded no opportunity to address them.

The Complainant’s claim for Unfair Dismissal as defined and provided for under the Unfair Dismissals legislation 1977 – 1993 must fail.