Complainant

Respondent

Anonymised Parties

Bar person

Hotel

Representatives

Edward Murray BL instructed by Nicola McDonnell McDonnell Solicitors

None

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-00013851-001

11/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00013851-002

11/09/2017

The Complainant worked as a bar person for the Respondent and her family for twenty-six years.

There was no attendance for the Respondent. A solicitor made an application for an adjournment. He was acting on the instructions of a firm of solicitors who had been contacted by the Respondent but they had no instructions to attend at the hearing.

There was no medical evidence before me to ground the application for the adjournment. There was correspondence on file between the Respondent’s solicitor and the Complainant’s solicitor. I declined to grant the adjournment. However, the Respondent’s solicitor letter of the 6th of April 2017 was before me and the points raised therein were addressed during the hearing.  

The Complained filed further supplemental submission post the hearing date and this was sent to the Respondent on the 2nd of October 2018.

CA/00013851/001:

The Complainant’s case is that she was constructively dismissed and forced to leave her employment on the 17th of March 2017 due to:

1. The reduction imposed in her working hours. She was forced to work three days rather than four days a week and the four-day shift was given to another employee
2. The refusal by the owner/manager to allow to her work in the coffee shop part of the hotel
3. Being left off the roster for an entire week without explanation
4. Being ignored by the owner/manager and her texts were no responded to when the Complainant raised grievances about being left off the roster
5. Being ignored by the owner/manager in person
6. Having her roster reduced to a two-day week
7. Retraction of Sunday premium
8. Being isolated and ignored by the owner/manager
9. Not being allowed to swap shifts unlike other members of staff
10. Culminating in an incident on the 17th of March 2017 at 10am when the owner/manager instructed the Complainant to “go”. The Complainant felt she had no option but to leave the workplace.
11. Being victimised.
12. Not being paid for three weeks prior to the dismissal.

Counsel for the Complainant provided a written submission in relation to the basis on which the Complainant was claiming constructive dismissal. Legal texts were referred to and case law.

It was argued that the Respondent had fallen foul of the contract test in particular by breaching the implied term of mutual trust and confidence and also the reasonable test in that the Respondent acted unreasonably to such an extent to force the Complainant to resign.

Ultimately the Complainant felt she had no choice but to terminate her employment. Despite having 26 years of service the only correspondence post the 17th of March 2017 was a solicitor’s letter dated the 16th of April 2017 from the Respondent.

The Complainant set out that she had raised a grievance with the Respondent however the Respondent had no engagement with the Complainant until three weeks after she had been forced to resign. The Complainant’s case is that the Respondent failed to adequately respond to her grievances and ignored her texts and blanked her in person.  

As regards the Complainant’s ongoing loss, since the termination of her employment in March 2017 the Complainant has been a carer for her mother. She is receipt of carer’s allowance and illness benefit. She confirmed that she was not in a position to look for work but she did make enquiries in local bars. She didn’t register with recruitment agencies or with INTREO.

The Complainant submitted a medical report dated the 4th of September 2018 from her GP and it referred to March 2017 and the Complainant presenting complaining of symptoms relating to stress. The report set out that the Complainant had recently left her place of work after working there for twenty-six years. She felt unable to continue working due to stress/anxiety associated with her position. Since leaving she has been able to find suitable alternative employment. She has been the main carer for her elderly mother. Only for her assistance her mother would not be able to remain at home. Her confidence has been affected by the manner of her departure and this has caused significant anxiety since her departure.

CA/00013851/002:

The Complainants case was that she had not received her terms and conditions of employment in writing from the Respondent.

She did confirm that the Respondent did have a HR consultant provide a disciplinary and grievance procedure to her.

The Respondent’s written submission which was in the form of a letter from her solicitor to the Complainant’s solicitor was that they did accept that a text message was sent but they did not feel it was appropriate to deal with matters concerning work via text message and as a result of this did not respond to the text. The letter set out that at all times the Respondent was available to the Complainant to discuss this matter. The letter further accepted that the Complainant did make an effort to speak with the Respondent with a raised voice in relation to the rostering however the timing of this was entirely inappropriate as the Respondent was with customers when the Respondent went to look for the Complainant later on she had already left and the correspondence noted that unfortunately the Respondent did not remember to raise the matter of rostering with the Complainant again.   As regards reduced working hours the Respondent’s position was that the Complainant asked if she could be taken off the Sunday shift and given an evening function shift instead. The Respondent facilitated this and when the Complainant was asked to work a number of evenings the Complainant advised she was not available. The Respondent’s position was that it treated all the employees with courtesy and respect. It has never unfairly criticised the Complainant.

For the incident on the 17th of March 2017 when the Respondent asked the Complainant why she was at work so early and not expecting to see her until 12 o’clock the Complainant explained she was rostered early and thereafter “roared” at the Respondent and became very agitated. The Respondent had no idea why the Complainant was agitated or where the outburst had come from. The Respondent denied telling the Complainant to “go” but simply said “not in front of customers”. The Respondent was aware that the Complainant had left the premises shortly thereafter of her own volition and had not returned to work since that day.

The letter went on to state that it is entirely a mystery to the Respondent why the Complainant feels no longer welcome on the premises and that the correspondence from the Complainant’s solicitor was the first notification of any such difficulties the Respondent had received. The letter went on to deal with again the issues raised and the Respondent’s response to same.

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 in Western 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, I 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. In light of the forgoing, I am satisfied that, having regard to the actions and inactions of the employer in this case, the Complainant was entitled to terminate her employment and it was reasonable for her to do so in the circumstances of this case. Accordingly, the Complainant was constructively dismissed from her employment with the Respondent. There being no substantial grounds justifying the dismissal, I find that such dismissal amounts to an unfair dismissal within the meaning of the Acts. In reaching this decision, I have considered the evidence provided to me in writing and orally. I found the evidence of the Complainant was compelling and I accept same as regards both complaints brought. By the Respondents own admission, it had received notification of the Complainant’s grievance and did not respond to it.

Section 7 of the Unfair Dismissals Act 1977, as amended, sets out the provisions dealing with redress, which in summary provides that I must decide on appropriate redress, having regard to all the circumstances, as between: reinstatement; re-engagement; compensation.In this case I am satisfied that neither of the job related remedies are appropriate, and the appropriate form of redress is that of compensation.Regarding compensation, the Act provides that compensation for financial loss (which is defined as including any actual loss and any estimated future loss) attributable to the dismissal, as is just and equitable having regard to all the circumstances, of up to a maximum of 104 weeks remuneration, may be ordered.In determining the amount of compensation, I am required to have regard to the following: the extent to which any financial loss is attributable to any act, omission or conduct by either the employer or the employee; the measures adopted by the employee to mitigate the financial loss; the extent to which the employer has complied with disciplinary procedures in relation to the dismissal; and the extent to which the conduct of the employee was attributable to the dismissal.

With regard to financial loss, Counsel for the Complainant submitted that the Complainant has been unavailable for work due to illness since her dismissal.   The Complainant herself gave evidence at the hearing and admitted she did not seek work due to her caring commitments to her mother. Her counsel further submitted that the conduct of the Respondent which led to the Complainant’s constructive dismissal also led to her illness. A medical report from her GP was lodged with the WRC. Her counsel sought future loss of earnings also.

Having considered the evidence of the Complainant herself and the medical report of her GP, I accept that the Complainant’s unavailability to seek work is partly due to the Respondent’s actions and inactions.   I don’t accept that it is totally responsible.

  CA/00013851/002:

I accept that the Complainant’s uncontested evidence that the Respondent did not provide her with written terms and conditions as required.

CA/00013851/001:

The Complainant was unfairly dismissed by the Respondent. I award the Complainant compensation in the amount of €6,240.00.

CA/00013851/002:

The Complainant did not receive her written terms and conditions of employment as required. I award the Complainant €260.00.

Constructive dismissal