Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015419-002

28/10/2017

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

CA-00015419-003

28/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00015419-004

28/10/2017

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

CA-00015419-005

28/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00015419-006

28/10/2017

The Respondent is the franchisee of a fast food restaurant in a provincial location. The Complainant was employed by the Respondent as a Team Member from 29 July, 2009 until 29 April, 2017 when her employment was terminated. The Complainant claims that she was constructively dismissed from her employment. The Respondent denies that a dismissal occurred and contends that the Complainant resigned from her position of her own volition.

The Complainant claims that the Respondent failed to provide her with a written statement of her terms and conditions of employment within the required timeframe provided for in Section 3 of the Terms of Employment (Information) Act, 1994. The Complainant also claims that her contract of employment did not contain information in relation to her job description or the number of hours that she would be required to work contrary to Section 3(1) of the Terms of Employment (Information) Act, 1994. The Respondent disputes the Complainant’s claims under the Terms of Employment (Information) Act, 1994

The Complainant also claims that the Respondent failed to pay her outstanding annual leave entitlements on the termination of her employment contrary to the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997. The Respondent disputes the Complainant’s claim under the Organisation of Working Time Act 1997.

CA-00015419-002 – Complaint under the Organisation of Working Time Act 1997

The Complainant contends that she did not receive her correct statutory annual leave entitlements or payment in lieu thereof during her period of employment with the Respondent. The Complainant claims that she is entitled to an amount of €1,215.24 in relation to outstanding annual leave entitlements which were accrued during the period from 2012 until the cessation of her employment on 29 April, 2017.

CA-00015149-003 – Complaint under the Terms of Employment (Information) Act 1994

The Complainant contends that her written contract of employment did not contain information in relation to certain particulars of her terms of employment as is required by the provisions of Section 3(1) of the Act. The Complainant claims that the written contract which she received from the Respondent on 7 June, 2010 did not contain specific information in relation to her job description. The Complainant also contends that her written contract did not state the minimum number of hours that she would be required to work but rather stated that she would be required to work no more than 30 hours per week.

The Complainant stated that she was not allocated a sufficient number of hours during her period of employment and that the Respondent reduced her hours on several occasions. The Complainant initially started work as a Cook but when she informed the Respondent that she could not do this job her hours were reduced. The Complainant stated that the hours allocated to her varied between 2 and 10 hours per week thereafter and she contends that she was deceived by the Respondent in relation to the number of hours that she would be allocated.

CA-00015149-005 – Complaint under the Terms of Employment (Information) Act 1994

The Complainant submits that she commenced employment with the Respondent on 29 July, 2009 but did not receive a written statement of her terms and conditions of employment until 7 June, 2010. The Complainant contends that she had to request this written statement from the Respondent on several occasions before it was eventually provided to her on 7 June, 2010. The Complainant claims that the Respondent has contravened the provisions of Section 3(1) of the Act by failing to provide her with a written statement of her terms of employment within the required timeframe.

CA-00015419-006 – Complaint under the Unfair Dismissals Acts

The Complainant claims that she was constructively dismissed from her employment with the Respondent on 29 April, 2017.

The Complainant commenced employment with the Respondent in July, 2009 in the position of Team Member but she wasn’t provided with a job description to clarify the specific nature to her role. The Complainant was initially assigned to work as a Cook but she was unable to continue performing these duties after a few years on health grounds and requested to be assigned to other duties. The Complainant was subsequently assigned to work in the lobby area of the restaurant but her hours were reduced to 10 hours per week which was spread out over three evenings. The Complainant submits that her contract of employment stated that she would be required to work no more than 30 hours per week but she was not assigned a sufficient number of hours during her period of employment despite raising this matter with management on a number of occasions.

The Complainant contends that she was demoted gradually during her period of employment and was denied the opportunity to progress and achieve promotion within the company. The Complainant states that she was afforded only two performance appraisals during her period of employment, one when she was working as a Cook and the other in 2016, and she was not given any encouragement by management to try and progress.

The Complainant submits that the Respondent’s attitude and behaviour towards her left her feeling humiliated and worthless. The Complainant provided evidence in relation to a number of incidents that occurred during her period of employment which she contends undermined her position and made her position untenable, including the following:

·         She was required to carry out demeaning and humiliating jobs such as cleaning the toilets and lobby area and to remove spider webs from outside the building. She was required to use sanitising chemicals when cleaning the toilets which left her with a sore throat. She was required to carry out degrading jobs which other workers would not do such as changing the bins and cleaning the walls in the toilets. The Complainant contends that her health and safety in the workplace was put at risk arising from the Respondent’s conduct in relation to these matters.

·         She was subjected to bullying and humiliation in the workplace.

·         Her Manager, Ms. B, was frequently very rude to her and constantly smoked in front of her during break times.

·         She had the same uniform for more than three years and encountered huge difficulties in trying to obtain a new uniform from management.

·         In April, 2015 she was threatened by her Manager that the Gardaí would be notified if she didn’t appear at a court case to give evidence in relation to an incident that had occurred in the restaurant involving a customer. The Complainant couldn’t attend the court case on the date in question as she was sitting an exam which the Respondent was fully aware of.

·         The Respondent frequently rostered her to work shifts which she was unable to fulfil as it would have resulted in her being unable to claim social welfare entitlements.

·         She was completing a third level course on a part-time basis in the latter years of her employment and her shifts were inexplicably increased by management during the months of April/May in 2016 and 2017 in the lead up period to her exams. In April, 2017 she was rostered to work three nights in a row as her exams approached, and as a result, she experienced severe stress in the workplace and encountered difficulties with her health.

·         The Respondent also refused to grant her study leave in April, 2017 despite the fact that a number of her colleagues had been granted such leave in previous years.

The Complainant submits that the Respondent was guilty of conduct which amounted to a significant breach going to the root of her contract of employment. She contends that the behaviour and attitude of management towards her during her period of employment showed that the Respondent intended not to be bound by many of the essential terms of her contract. The Complainant contends that she could not fairly or reasonably be expected to tolerate the behaviour and attitude of management towards her any longer and was left with no option but to resign from her employment.

The Complainant submits that from the point of satisfying the “reasonableness test”, she did everything possible to try and remain in her employment. The Complainant contends that she performed her duties to the highest possible standards and followed all required procedures. The Complainant submits that the cumulative effect of all of the aforementioned acts by the Respondent resulted in her having no option but to resign from her employment.

The Complainant submits that she notified the Respondent of her resignation by e-mail on 29 April, 2017 and requested that all relevant documentation (including her P45) be sent to her home address. The Complainant contends that the Respondent failed to comply with this request and she had to approach management at the restaurant on 24 May, 2017 to request her P45. On this occasion, the Complainant approached the HR Manager and requested her P45, but she threatened to call the Gardaí if she went behind the counter. The Complainant contends that her treatment by the HR Manager on this date was further evidence of the humiliation and bullying that she was subjected to during her employment. The Complainant eventually received her P45 on 27 May, 2017, which was a full month after her resignation.

The Complainant relied on the cases of Western Excavating Limited -v- Sharp[1], Post Office -v- Roberts[2], Woods -v- W.M. Car Services (Peterborough) Limited[3] and Omilaju -v- Waltham Forest London Borough Council[4] in support of her position in relation to this matter.

CA-00015419-002 – Complaint under the Organisation of Working Time Act 1997

The Respondent submits that the Complainant’s complaints in relation to annual leave between 2010 and 2016 fall outside of the relevant reference period and are therefore statute barred.

In relation to the claim for 2017, the Respondent submits that the Complainant worked 42 hours from 1 April, 2017 up to the time she resigned on 29 April, 2017. The Complainant was therefore entitled to 3.36 days annual leave (8% of hours worked) at the time her employment ended. The Respondent submits that the Complainant was paid in respect of her outstanding annual leave entitlements on the cessation of her employment.

However, the Respondent accepts that due to an oversight the Complainant is still due payment in respect of 1.69 hours which she will receive payment for. The Respondent submits that the Complainant was not entitled to any additional annual leave as she has received all annual leave owing to her at the end of her employment.

CA-00015149-003 – Complaint under the Terms of Employment (Information) Act 1994

The Respondent submits that the within complaint is misconceived. Notwithstanding the foregoing, the Respondent submits that the Complainant’s contract was a part-time contract which states that she would be required to work no more than 30 hours a week. The Complainant was contracted on average to work 8.79 hours per week and this varied on a weekly basis. It is the Respondent’s position that the Complainant was in receipt of social welfare payments and as a result was unable to work additional hours. Furthermore, the Complainant was also doing a course and advised the Respondent that she would be unable to work more than 3 days per week. The Respondent submits that it was not in breach of the Act in circumstances whereby the Complainant was employed on a part-time contract and was accommodated with varying hours in order to suit her schedule.

CA-00015149-005 – Complaint under the Terms of Employment (Information) Act 1994

The Respondent submits that the Complainant was issued with her contract of employment upon the commencement of her employment along with numerous other induction documents such as Authorisation Deduction Declaration, Uniform Agreement and Training Agreement etc. The Respondent submits that the documentation issued along with the contract of employment has been signed by the Complainant on 28 July, 2009, the day before her official commencement date. It is submitted that the complaint is not well founded and should fail.

CA-00015419-006 – Complaint under the Unfair Dismissals Acts

The Respondent disputes the Complainant’s claim that she was constructively dismissed from her employment.

The Respondent submits that the Complainant has made nothing more than mere assertions that she was mistreated during her employment and that her hours were cut to the point where she was impoverished. The Respondent submits that the Complainant has failed to disclose that she was not in a position to work additional hours in circumstances where she was in receipt of social welfare payments and she was not in a position to work more than 3 days per week.

The Respondent submits that the Complainant was engaged on a part-time contract contracting her to work up to 30 hours a week. The Complainant was initially assigned to work as a Cook. However, in a welfare meeting with the Complainant in October, 2013, she raised an issue about her hours and advised the HR Manager, Ms. K, that she did not want to cook as the work was too heavy and the air conditioning was not nice on her back. It is submitted that while the Respondent discussed hours with the Complainant and tried to accommodate her with additional hours, she was either unavailable or unable to carry out any additional hours.

The Respondent submits that the Complainant advised management during her employment that she was unable to do the job, she did not realise that lifting would be involved, she did not wish to work in certain areas of the restaurant and she would change her hours repeatedly to suit her schedule, then complain about lack of hours.

The Respondent submits that the Complainant tendered her resignation without warning on 29 April, 2017. Importantly, the Complainant’s own resignation letter advised that she was resigning “after close consideration, all of situations I have encountered, and all benefits and opportunities I have received during my employment with [the Respondent] …. I hereby tender my resignation with immediate effect”. Further to her letter of resignation, the Complainant e-mailed Ms. K to make enquiries regarding study leave at the company. The Complainant alleged that she had asked her Manager, Ms. B, about same and was advised that such leave was not available to staff. The Complainant then advised Ms. K that he felt this act was “deliberate bullying”. The Respondent advised the Complainant that as such study leave was not available but they would do their best to accommodate her.

The Complainant was also asked to reconsider her resignation in that same e-mail but there was no further correspondence from the Complainant save for requesting her P45. The Complainant also failed to raise a grievance with the Respondent in relation to any alleged inter-personal relationships and failed to advise her direct Manager, Ms. B, that she did not like how she was allegedly being treated by the HR Manager, Ms. K, despite the fact that she met with Ms. K in October, 2013 and then corresponded with her in August, 2016 regarding her hours again, her uniform, social welfare forms and a broom handle.

The Respondent submits that the company has a detailed Grievance Procedures Policy which is available in the staff canteen in every store and further, the Complainant received a copy of this procedure on 31 October, 2013 during a meeting with Ms. K. The policy clearly states that any grievances should be raised with the employee’s Line Manager at first instance, failing that, the matter should be referred to the next line of management. The policy dictates that the complaint will be dealt with thoroughly, the employee has a right to be accompanied and there is a right of appeal. The Respondent submits that the Complainant failed to notify her employer of any of the alleged issues she was experiencing.

In summary, the Respondent contends that the Complainant resigned from her employment of her own volition without having sought to invoke the internal Grievance Procedures in relation to any of her alleged workplace difficulties.

The Respondent relied on the cases of Ian Flaherty -v- College Freight Limited[5], Donegan -v- Co. Limerick VEC[6], Conway -v- Ulster Bank Limited[7] and Employee -v- Employer[8] in support of its position in relation to this matter.

CA-00015419-002 – Complaint under the Organisation of Working Time Act 1997

The Complainant’s employment was terminated on 29 April, 2017 and she referred her complaint under the Organisation of Working Time Act 1997 to the Workplace Relations Commission on 28 October, 2017. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 29 April, 2017 to 28 October, 2017.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(ii) of the Act I am satisfied that any outstanding annual leave accrued during the annual leave year 2016/2017 (i.e. 1 April, 2016 to 31 March, 2017) and 2017/2018 (i.e. 1 April, 2017 to 31 March, 2018) is covered by this complaint. Therefore, I do not have jurisdiction to consider any alleged contraventions of the Act in relation to the Complainant’s annual leave entitlements prior to the 2016/2017 leave year.

I note from the records adduced in evidence by the Respondent that the Complainant worked a total of 457.25 hours during the period from 1 April 2016 to 31 March, 2017 (the 2016/17 leave year). Therefore, the Complainant accrued an entitlement to 36.58 hours annual leave during this period (i.e. 8% of 457.25). The Complainant worked a total of 42 hours during the period from 1 April, 2017 until 29 April, 2017 when her employment terminated. Therefore, the Complainant accrued an entitlement to 3.36 hours annual leave during this period (i.e. 8% of 42). Accordingly, I am satisfied that the Complainant accrued a composite entitlement to 39.94 hours annual leave for the 2016/17 and 2107/18 annual leave years.

The Respondent adduced evidence that the Complainant was paid in respect of 38.25 hours annual leave during this period, thereby leaving a shortfall of 1.69 hours annual leave, which was still outstanding following the termination of her employment.

Having regard to the foregoing, I find the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 23 of the Act. Accordingly, I find that the complaint is well founded.

CA-00015149-003 – Complaint under the Terms of Employment (Information) Act 1994

The Complainant contends that the Respondent has contravened the provisions of Section 3(1) of the Act on the basis that her written contract of employment did not contain information in relation to her hours of work and job description.

Sections 3(1) of the Act provides that the written statement of an employee’s terms of employment shall contain particulars in relation to “(d) the title of the job or nature of the work for which the employee is employed” and “(i) any terms and conditions relating to hours of work (including overtime)”.

In considering this matter, I have examined the Complainant’s written contract of employment and I am satisfied that it fully complies with the aforementioned requirements as set out in Section 3(1)(d) and (i) of the Act.

Having regard to the foregoing, I find that the Respondent did not contravene the relevant provisions of Section 3(1) of the Act in relation to this matter and that the complaint is not well founded.

CA-00015149-005 – Complaint under the Terms of Employment (Information) Act 1994

The Complainant has claimed that the Respondent has contravened Section 3 of the Terms of Employment (Information) Act 1994 by failing to provide her with a statement in writing of her terms of employment within two months after the commencement of her employment.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that: “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

Section 3 of the Act requires an employer to furnish the employee with a statement in writing of their terms of employment within two months of the commencement of the employment.

There was a dispute in evidence between the parties in relation to this matter. The Complainant contends that she did not receive a written statement of her terms and conditions of employment until 9 June, 2010 which was some 11 months after her commencement of employment. The Respondent disputes this claim and contends that the Complainant was issued with her contract of employment and all other relevant policies on the commencement of her employment on 29 July, 2009.

In considering this matter, I note that the Respondent provided a copy of this written contract which was signed by the Complainant on the aforementioned date. I accept the Respondent’s evidence that this document was given to the Complainant on the commencement of her employment and furthermore, I am satisfied that it contains information in relation to all of the material particulars as required by Section 3(1) of the Act.

In the circumstances, I find that the Respondent did not contravene Section 3 of the Act and that the complaint is not well founded.

CA-00015419-006 – Complaint under the Unfair Dismissals Acts

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[9]. It comprises of two tests, 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.” 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[10]: “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 question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The Complainant claims that she encountered significant difficulties throughout the duration of her employment in relation to the allocation of hours and rostering arrangements. In particular, the Complainant claims that her hours were reduced when she was available to work more hours and were increased when she was approaching her exams and unable to do additional hours. The Complainant also claims that she encountered serious difficulties in relation to her conditions of employment including being subjected to bullying behaviour by management and being required to carry out demeaning and humiliating duties. The Complainant claims that ultimately her position became untenable and that she was left with no alternative but to resign from her employment.

The Respondent disputes the claim of constructive dismissal and contends that the Complainant resigned of her own volition after failing to invoke the internal grievance procedures in relation to any of the alleged bullying and difficulties that she encountered in the workplace. The Respondent also refutes the Complainant’s contention in relation to the allocation of hours and rostering difficulties and contends that it made every effort to accommodate her with additional hours but she was either unable or unwilling to carry out any additional hours when offered to her. The Respondent contends that the Complainant was requested to reconsider her resignation but she refused to do so.    

In considering this issue, I note that there was a conflict in evidence between the parties in relation to the alleged issues concerning the allocation of hours to the Complainant and her rostering arrangements during her period of employment. The Respondent totally refuted the Complainant’s evidence that her position became untenable as a result of management’s refusal to allocate her sufficient hours or by seeking to impose unfavourable rostering arrangements prior to her exams. I have found the Respondent’s evidence to be more compelling on this issue and I accept its evidence that all reasonable efforts were made to accommodate the Complainant with additional hours and shifts when requested to so, but that these efforts were frustrated by the Complainant due to her unavailability and unwillingness to make herself available when required.

I have also found the Complainant’s evidence in relation to the alleged difficulties concerning her working conditions to be wholly unconvincing. I find that the Complainant has failed to adduce any significant evidence to support her claims that her working conditions were intolerable but rather she has essentially relied upon supposition and assertion, unsupported by any compelling evidence, to support these claims.

It is also well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[11] that: ”In constructive dismissal cases, the Court must examine the conduct of both 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 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 Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of John Travers v MBNA Ireland Ltd[12] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, I am satisfied that the Respondent had established Grievance and Disciplinary Policies in place which conform to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[13]. Having regard to the evidence adduced, I find that these policies were brought to the Complainant’s attention during her period of employment and that she was fully aware of their existence.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to invoke these internal procedures to try and resolve the workplace related grievances which she contends arose during her employment before taking the step to resign from her employment. Based on the evidence adduced, I do not accept that the Complainant sought to invoke the internal grievance procedures in relation to the alleged workplace related grievances or difficulties with the allocation of hours which she contends arose during her period of employment.  

I also note that the Respondent’s HR Manager, Ms. K, replied to the Complainant’s resignation e-mail on 30 April, 2017 and asked her to reconsider her resignation and sought to address issues which she had raised in relation to study leave. However, despite these efforts by the Respondent, I am satisfied that the Complainant refused to rescind her resignation in order to allow the Respondent the opportunity to address any grievances which she may have had in accordance with its internal grievance procedures.

In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was such that she had no option but to resign her position. I find that the Complainant did not give the Respondent an opportunity to address her concerns before taking the decision to resign from her employment.

I find that the Complainant has not established a case that she had no option but to resign her position. Accordingly, I find that the Complainant was not constructively dismissed from her employment.

CA-00015419-002 – Complaint under the Organisation of Working Time Act 1997

In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 23 of the Act. I order the Respondent to pay the Complainant:

-          €15.73, subject to any lawful deductions, cesser pay in respect of annual leave accrued for the 2016/2017 leave year, and

-          €100.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

CA-00015149-003 – Complaint under the Terms of Employment (Information) Act 1994

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has not contravened Section 3 of the Act and that the complaint is not well founded.

CA-00015149-005 – Complaint under the Terms of Employment (Information) Act 1994

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has not contravened Section 3 of the Act and that the complaint is not well founded.

CA-00015419-006 – Complaint under the Unfair Dismissals Acts

I find that the Complainant resigned from her position of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

Organisation of Working Time Act 1997 – Section 19 – Section 23 – Annual Leave entitlements – Terms of Employment (Information) Act 1994 – Section 3 – Written Statement of Terms of Employment – Unfair Dismissals Act 1977 – Section 1 – Constructive Dismissal