UDD1855

FULL RECOMMENDATION

UD/18/88

DETERMINATIONNO.UDD1855

ADJ-00009820 CA-00012862-001

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

DSPCA ANIMAL SHELTER LTD
(REPRESENTED BY ANNE O'CONNELL SOLICITORS)

- AND -

PAMELA DUGGAN

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Connolly
Worker Member: Mr Hall

SUBJECT:
1. Appeal of Adjudication Officer Decision No:ADJ-00009820 CA-00012862-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 22 May 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 10 October 2018 . The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Ms Pamela Duggan against the decision of an Adjudication Officer No. ADJ-00009820 under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim of unfair dismissal by her former employer, DSPCA Animal Shelter Limited. The Complainant claimed that she was constructively dismissed. The Adjudication Officer found that the Complainant’s claim was not well founded.

For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Pamela Duggan will be referred to as “the Complainant” and DSPCA Animal Shelter Limited will be referred to as “the Respondent”.

The claim was referred under the Acts to the Workplace Relations Commission on 30^thJuly 2017.

Background

The Respondent was established in 1840 and registered in 1909 and is the oldest and largest annual charity in the Republic of Ireland. The Complainant was employed by the Respondent as an Animal Care Worker on 2^ndMay 2014. On 29^thJune 2017 she tendered her resignation.

Summary of the Complainant’s Case

The Complainant appeared as an unrepresented party. She submitted to the Court that she had no option other than to resign from her employment due to the conduct of the Respondent.

As background to her case, the Complainant stated that in March 2015 she was diagnosed with health issues. When she informed her Manager of her health situation, her working responsibilities were limited to reception, although she continued to occasionally cover shifts in other areas if needed. She said at the time her hours remained the same, three shifts a week. In 2016, her health issues continued and by agreement these were reduced to two shifts per week on a temporary basis. As this arrangement was working well, her weekly hours were reduced to two shifts on a permanent basis. Around this time the Complainant had a number of personal difficulties which she made her manager aware of. The Complainant said that at a meeting on 11^thNovember 2016, her Manager mentioned that there would be a change to her working hours with a reduction in those hours in January 2017.

The Complainant alleged that when she telephoned her Manager on 29^thNovember 2016 to discuss her return to work, her Manager told her that she was removing her eleven weekly working hours in order to distribute them among two members of staff, however, her Manager informed her that if cover work became available she would be called in. She said that her Manager explained that she would have to speak to the accounts department about how to go about this as the Complainant may have to become a contractor and invoice the Respondent for such cover work. The Complainant said that she was in shock with this development, however, she agreed to the new arrangements. She then requested to take December off as unpaid leave. This was agreed to. The Complainant said that her Manager asked her to forward an email to that effect which she did on 30^thNovember 2016.

On 30^thNovember 2016, the Complainant said that she spoke to a work colleague via Facebook Messenger and discovered that the information regarding shift changes was inconsistent and there was no mention about her (the Complainant’s) hours being reduced. At the end of December 2016, she contacted another work colleague and found that no hours had been allocated to her from 1^stJanuary onwards. The Complainant then decided to submit a number of claims against the Respondent to the Workplace Relations Commission.

The Complainant attended a hearing before an Adjudication Officer on 28^thJune 2017 to hear her claims of unfair dismissal, redundancy and other matters, following claims she had referred under various employment enactments, on 20^thJanuary 2017 and 3^rdMarch 2017. At the time she was claiming,inter alia, that she had been constructively dismissed with effect from 31^stDecember 2016. She also sought to be declared redundant.

At that hearing before the Adjudication Officer, the Respondent denied that it had dismissed the Complainant. The Adjudication Officer decided to hold meetings separately with each party and the Respondent clarified that her job was still available. Following which the Adjudication Officer put it to the Complainant that she either accept the Respondent’s offer of a return to work or resign. He told her that she had 24 hours to think about her options. The following day the Complainant tendered her resignation by email to her Manager. She lodged a claim of unfair dismissal just over a month later, on 30^thJuly 2017.

The Complainant maintained that as her hours of work had been distributed to other employees on completion of a period of absence on 1^stJanuary 2017 she believed that she no longer had a job with the Respondent. She said that she came to this conclusion as she discovered from another colleague that her hours had been given away to her two colleagues Ms X & Ms Y. In her submission to the Court, the Complainant made reference to her Manager’s assertion that she (the Manager) was waiting for the Complainant to return to work in January 2017 to discuss her hours going forward, but the Complainant questioned, how could she return when she had no work to return to.

During the discussions before the Adjudication Officer on 28^thJune 2017, the Complainant said that her Manager had agreed to give her back her hours of work and she had agreed to go back to work, however, on reflecting on the issue overnight, she decided to resign as she felt that she could not return to a workplace where management behaved in the way it did by removing her working hours from her and she feared repercussions. She alleged that management’s conduct showed that it no longer intended to be bound by one of the essential terms of her contract, i.e. her hours of work, as it breached it by taking said hours away from her and it acted unreasonably in doing so. She submitted that it was reasonable for her to conclude that despite assurances, she was not going to get her job back.

In her submission to the Court the Complainant said that she believed that she would not have got her hours back and she described the work environment as “toxic” and submitted that she could not return to such an environment as it would be damaging to her health.

Summary of the Respondent’s position

Ms Anne O’Connell Solicitor, Anne O’Connell Solicitors, on behalf of the Respondent denied that the Complainant was dismissed when she submitted her complaint of unfair dismissal to the Workplace Relations Commission on 20^thJanuary 2017, she said that she was still an employee of the Respondent at that time, she had neither been dismissed nor had she resigned. She said that this had been confirmed to the Complainant by email on 23^rdFebruary 2017 and in writing by letter dated 7^thMarch 2017.

Before the Adjudication Officer at the hearing of that case on 28^thJune 2017, at the discussions which took place on the day, the Respondent made it clear to the Complainant that it harboured no ill will towards her, that the hours she previously worked remained available to her and that it would be happy for her to return if she decided to return to her role. It assured her that there would be no repercussions for taking the unfair dismissals claim. Ms O’Connell said that the Respondent gave this undertaking in good faith. The Complainant accepted this undertaking and withdrew her claims.

Despite the undertakings given by the Respondent, the Complainant did not return to work and chose to resign with immediate effect on 29th June 2017, and she subsequently lodged another unfair dismissal claim on 30th July 2017

The Respondent stated that due to the personal difficulties the Complainant was encountering in 2016 it had consented to her request to reduce her working hours, to avail of time off and of unpaid leave.

Ms O’Connell said that on 29^thNovember 2016 the Complainant’s informed her Manager that she wished to take the remainder of 2016 off to continue trying to resolve matters in her personal life. While this presented difficulties for the Respondent, it was acceded to. The Complainant then made some enquiries regarding a receptionist who had requested to transfer roles and she enquired how this would impact on her hours. Her Manager informed her that nothing was finalised yet and they would see what the position was when she returned to work.

Ms O’Connell disputed the Complainant’s assertion that the Complainant’s Manager told her that her hours were to be distributed to her two colleagues, Ms X & Ms Y. Instead she said that it was the Complainant who asked about Ms X’s intention to give up her position in the cr�che at the end of the year and her move to a 5-day week rota from January 2017 and the Complainant enquired how this would impact on her hours. The Manager informed her that Ms X was already working 4 – 5 shifts per week and therefore it should have no impact on the Complainant’s hours. In any event as Ms X was on holidays in Australia and was not sure of her return, she (the Manager) was not in a position to say anything further until closer to the time when the Complainant would indicate that she was ready to return.

Ms O’Connell said that the Complainant enquired about alternative positions within the Respondent and asked her Manager to provide her with options for when she returned, she also enquired about whether she could invoice for her hours like the Dog Trainers do. Ms O’Connell said that the Complainant’s Manager was not prepared for such a request and could not give the Complainant any suggested vacant or upcoming positions without first knowing when the Complainant intended to return to work. The Complainant was requested to submit her request by email which she duly did the next day. This also stated that she would be taking the remained of the year off.

Ms O’Connell disputed the assertion that the Complainant’s hours were to be removed in order to distribute those hours to Ms X and Ms Y. She produced copies of Facebook messaging between Ms X and the Complainant where Ms X disputes the Complainant’s assertion on this point. By letter dated 7^thMarch 2017, the Complainant’s Manager informed her that she must have misunderstood their conversation on 29^thNovember 2016. She offered to meet the Complainant to discuss the situation further, however, by email on 8^thMarch 2017, the Complainant declined the offer to meet stating that she preferred the “the judgement processes run their course”.

The Law

Section 1 of the Act defines constructive dismissal as follows: -

“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”

Findings of the Court

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 Acts 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/her 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 inWestern 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, if so he/she is justified in leaving.

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so.

The question for the Court to decide is whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or itwas or would have been reasonable for her, to terminate the contract of employment.

In constructive dismissal cases, the Court 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 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 Court notes that the Complainant tendered her resignation with immediate effect on 29^thJune 2017, one day after the discussions which were held under the auspices of the Adjudication Officer where the Respondent gave the Complainant assurances of her return to work with her normal working hours and gave her an assurance of no repercussions for taking the claim under the Acts. When questioned by the Court why she had made this decision she said that she feared that the Respondent would not abide by its assurances as her hours of work had previously been given away to her colleagues and fearing repercussions if she did return, therefore she was of the view that the Respondent no longer intended to be bound by one of the essential terms of her contract of employment.

The Court is of the view that there were no grounds for such assertions. The Court notes the following: -

�At no point did the Complainant seek clarity on her working hours from any member of management, her decision not to return to work was based on engagement with other colleagues rather than with management.

�At no point did the Complainant raise any internal issue/grievance with any member of management, including the Chief Executive Officer, as per the Respondent’s Grievance Procedure.

�When the Complainant submitted a claim of unfair dismissal on 20^thJanuary 2017, the Respondent responded to assure her that she was still an employee of the Respondent; that when she had requested time off in late 2016 due to her personal difficulties and she was not sure of her work plans going forward, it was agreed that she would revert to her Manager in 2017 when she intended to return to work.

�When the Complainant responded to the above claim on 7^thMarch 2017, alleging that she had been informed on 29^thNovember 2016 that her hours were to be distributed to her two colleagues, her Manager immediately responded with a letter of the same date, to once again assure her that she was still an employee of the Respondent and that her role was not at risk of redundancy. It was clarified for her that she clearly misunderstood the context of the conversation in November, and indicated that the Manager was willing to meet to discuss the situation. This offer to meet was declined as the Complainant wished to pursue her claims against the Respondent.
�The Complainant provided no facts to substantiate her belief that she would not get her hours back and no facts were presented to substantiate her assertion that the work environment was “toxic”. She intimated that this was due to her Manager’s interactions with her. This was despite the Complainant’s Facebook message to her colleague where she refers to her Manager at the meeting on 11^thNovember 2016 as “[the Manager]told me to take my holiday days from now and come back in a few weeks. she was lovely, in fairness to her”.
�When questioned by the Court as to the reference to the “toxic environment”, the Complainant in an honest manner accepted that there was no evidence to substantiate this assertion.

Having considered the Complainant’s evidence, the Court is satisfied that no facts have been presented to substantiate her beliefs/view. The Court fails to see how any assertions meet the standard of reasonableness required to substantiate a claim of constructive dismissal. In any event, there is a concomitant obligation on a person seeking to rely on that test to act reasonably. From the evidence tendered by the Complainant, the Court has found no evidence to indicate that she made reasonable efforts to address her grievances before resigning.

In all the circumstances of this case, the Court cannot accept that this contention as a fundamental breach going to the root of her contract. Nor could any of the other matters referred to by the Complainant in her evidence, either individually or cumulatively amount to such a fundamental breach of contract.

Determination

The Complainant’s appeal is, accordingly, dismissed. The Court so determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
MK______________________
12 October 2018Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.