ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00013721

Complaint:

Date of Adjudication Hearing: 12/07/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND.

The Complainant was employed as a Receptionist with the Respondent Company from 19th September 2016 until she terminated the employment on 25th January 2018. The Complainant was paid £10.00 an hour and she worked 40 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 19th March 2018 alleging she had been unfairly dismissed by reason of constructive dismissal.

Summary of Complainant’s Position.

The Complainant stated that she was employed by the Respondent as a Receptionist but she also provided services for another named sister Company in premises next door to the Respondent. There was a common phone line for both Companies and she stated that she dealt with some 120 – 150 phone calls and she also meet clients when they came into the Company. She also entered Invoices for both Companies. She stated she was also receiving work from the Accounts Department which in her view was excessive when she was only receiving £10.00 an hour and she had raised the issue with the Respondent on numerous occasions. She stated the MD of the Company came to her before Christmas during which she informed him the workload was too much and the filling was not being done. The MD informed her he would review the position and talk to the Accounts Department but he deemed her workload to be appropriate.

She was on sick leave for three days in January 2018 and when she returned to work as a Receptionist she was receiving calls concerning an advertisement for a Receptionist Job. She stated she had thought the advertisement related to her position of Receptionist which had been advertised in 2016 and hadn’t been taken down. She stated she approached the General Manager who informed her that yes it was the advertisement for her position from 2016. On the next phone call she sent an email to the MD of the Respondent Company. She stated that she had seen the advertisement for a Receptionist/Administrator for the Respondent’s sister Company dated 8th January 2018 paying £12.00 an hour. She stated she was very upset as she felt it was her job that was being advertised.

She stated she then approached the Managing Director of the Respondent Company and informed him she had seen her job advertised and that therefore she would not stay any longer. She was informed it was not her position but that her position had been advertised elsewhere. On 24th January 2018 she stated she received phone calls from employees interested in both positions that had been advertised. She stated that she was also approached by one of her neighbours who informed her she had been called for interview for both positions.

She stated that she had another discussion with the MD who asked her to remain for a further two weeks until the positions were filled but she declined and she left her employment.

The Complainant stated she had been in receipt of Jobseekers Benefit from the Department of Social Protection and this was confirmed by the Social Welfare Services Office by letter dated 18th July 2018. The Complainant provided evidence to the Hearing concerning mitigation of loss.

The Complainant argued also that 6 months after the advertisement for a Receptionist was advertised for the sister company this position has not been filled and the advertisement has been removed.

SUMMARY OF RESPONDENT’S POSITION.

The Complainant commenced employment with the Respondent as a Receptionist on 19/9/2016 and was provided with a written statement of her Terms and Conditions of Employment dated 26th November 2016 – copy provided. The Complainant’s role was a Receptionist but she challenged her duties with her Line Manager around 15th January 2017 and she was provided with a detailed job description which included – process invoices and other office documents - The Complainant raised the same issue with the Managing Director on 24th May 2017 and she was advised that invoicing formed part of the usual duties of a Receptionist and that if she was in difficulty she should prioritise invoicing over filling. She did not lodge any other complaints after this.

During Christmas 2017 the Respondent and its named sister Company underwent a restructuring of the two businesses. While both are separate legal entities, they shared two Buildings and due to expansion the Sister Company needed to increase its workforce. This necessitated the recruitment of a Receptionist/Administrator for the Sister Company. The Company advertised for an Administrator on 28th November 2017 which was filled on 22nd January 2018. The Sister Company also advertised for a Receptionist/Administrator for the Sister Company on 8th January 2018 as they wished the Receptionist to assist the Administrator in their function. The Respondent was unable to provide copies of these Advertisements as the Recruitment Agency removed them after three months under GDPR – letter from Recruitment Company provided dated 2nd July 2018.

This new position of Receptionist/Administrator was not discussed with the Complainant as it was a new position for a separate Company and as is clear the Complainant was never employed by the Sister Company.

The Complainant approached the MD, Named, and raised query concerning her role being advertised. At this meeting the MD assured the Complainant that the role advertised was for a different Company and at no time did the MD inform the Complainant that her position was advertised elsewhere or to her leaving the Company. On the contrary when the Complainant sought to resign from her position the MD sought to ask her to reconsider her position. The Complainant refused and confirmed she would work her notice.

However on 25th January 2018 the Complainant was upset because a neighbour contacted her in relation to the position advertised for another Company. She approached the MD again and tendered her resignation with immediate effect. The MD made every effort to explain the position to the Complainant again but the MD could not convince the Complainant.

The Contract of Employment refers to the Grievance Procedure of the Company which is contained in the Employee Handbook but the Complainant did not utilise the internal grievance procedure.

The Respondent stated that an Administrator had been recruited for the Sister Company and commenced on 22ndJanuary 2018 – copy of their Contract of Employment provided to the Adjudication Officer. The Receptionist/Administrator for the Respondent Company commenced on 30th January 2018 – copy of Contract of Employment provided to the Adjudication Officer. The rate of pay is shown as £12.50 an hour. The Respondent stated the person appointed assists the Administrator in the Sister Company while the Complainant when employed dealt only with phone calls for the sister Company.

The Respondent also made a Legal Submission to the Hearing and argued that the Complainant had not satisfied the Burden of Proof in a Constructive Dismissal Complaint

FINDINGS AND CONCLUSIONS.

On the basis of the evidence, written submission questioning at the Hearing by the Adjudication Officer I find as follows –

The Complainant was provided with a written statement of her Contract of Employment which clearly states she is employed by the Respondent Company. I note that the Contract of Employment also provides for the Company Grievance Procedure and references, this is contained in the Staff Handbook

Section 1(1) of the Act describes what is commonly described as – constructive dismissal – (b) 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 the 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.

There are essentially two tests that an employee can argue in a complaint of constructive dismissal –

There must be a significant breach of the contract of employment by the employer, which shows that the employer no longer intends to abide by one or more elements of the contract of employment and that in such circumstances the employee was justified in tendering her resignation.

The Complainant has not established there was only breach of contract by the Respondent and there was no evidence presented to me at the Hearing that the Respondent had advertised her position of Receptionist with the named Respondent.

The Complainant must have acted reasonably in tendering her resignation.

The Complainant did not utilise the Grievance procedure of the Respondent if she thought it was her position that had been advertised although there was no evidence to this effect.

The Complainant has not established that she acted in a reasonable manner in tendering her resignation.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

On the basis of the evidence and my Findings above and in accordance with Section 8(1)(c) of the Act I declare this complaint is not well founded as there was no evidence presented to me at the Hearing or since that the Respondent Company had placed an advertisement to recruit a Receptionist to replace the Complainant in the Respondent Company nor did the Complainant utilise the internal Grievance Procedure of the Company in relation to any complaint she had in relation to her position in the Company.

Dated:   10/10/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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