Complainant

Respondent

Anonymised Parties

A Wedding Co-ordinator

A Hotel

Representatives

Michael MacNamee B.L. instructed by Raymond Quinn Solicitor

John B O'Connor & Co Solicitors

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-00012720-001

21/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00012720-002

21/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012720-003

21/07/2017

The complainant was employed by a previous employer since 2006 and by the respondent after a Transfer of Undertakings on 26th November 2016. The complainant’s established work pattern was three days per week and she was paid €20.62 gross per hour. The complainant’s resigned from the employment on 9th February 2017. The complainant stated that she was left with no option but to resign from her employment as a result of the respondent’s actions towards her. The complainant is claiming Constructive Unfair Dismissal. The complainant has also submitted complaints pursuant to Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003(S.I. No 131 of 2003) and the Payment of Wages Act, 1991. The complainant is seeking compensation in relation to her complaints.

The complainant stated that she was left with no option but to resign from her employment as a result of how she had been treated by the respondent. The complainant stated that she had worked in the business since 1996 and for the respondent since a transfer of undertakings took place in November 2016. The complainant stated that she had a written contract of employment confirming that she worked three days per week. The complainant stated that her contractual hours of work per week was brought into question after the respondent took over the business and she raised a grievance on 8th January 2017 in relation to her contract. The complainant stated that a grievance meeting took place on 18th January 2017 and she was notified on the 20th January 2017 that her grievance had not been upheld. The complainant stated that she appealed the decision on 26th January 2017. The complainant confirmed that her last day of work for the respondent was on 30th December 2016 and that she was ill in early January 2017. She confirmed that she was fit to resume her duties after the expiry of her Sickness Certificate on the 9th January 2017 yet was not permitted to return to work by management during the grievance process. The complainant stated that she had not been rostered for work from 9th January 2017, had been told at the grievance meeting that she would not be returning to work until the grievance process was complete and in line with her contract and business requirements. The complainant stated that she was also told by the respondent that there was no need for a wedding co-ordinator as there were no weddings booked. The complainant stated that the situation left her with no work, uncertain if she was still employed or unemployed and caused her great distress. The complainant stated that as a result of the respondent’s actions towards her she felt that she had no option but to resign from her employment with effect from the 9th February 2017. The complainant is seeking compensation in relation to her complaint.

The respondent stated that there was significant confusion relating to the complainant’s contract of employment. The respondent stated that an unsigned version held by the complainant outlined a contractual entitlement to a three day (24 hours) working week. The signed version of the contract which the respondent stated was the official one that it received at the time of the transfer did not have a reference contained within relating to hours and days of attendance. The respondent stated that it held a grievance meeting on 18th January in line with its grievance procedures and sought clarification from the previous owner of the business. The respondent stated that the previous owner confirmed that the correct contract was the signed contract which did not include any reference to days and hours of work. The respondent stated that it notified the complainant of this by way of its grievance decision to her on 20th January 2017. The respondent confirmed that its decision was subsequently appealed by the complainant by way of letter dated 26th January 2017. The respondent stated that while the appeal was pending it made the decision to agree to grant the complainant the 24 hours per week contract. The respondent confirmed that it notified the complainant of this by email on 7th February 2017.

The respondent stated that prior to her resignation, the complainant had been provided with her claimed contractual entitlement as a gesture of goodwill and in the interests of a harmonious relationship going forward.

The respondent cited the case of Healy v Credit Card Systems Ireland Limited UD1448/2003 in relation to the Burden of Proof. The respondent stated that the complainant must prove that as well as the actions of the employer being unreasonable, the actions of the complainant in resigning must also be reasonable. The respondent stated that the actions of the complainant in resigning after her claimed contractual entitlements had been provided to her was not reasonable.

The respondent also cited the cases of A Deli Counter Manager v A Convenience Store (ADJ-00009736, Conway v Ulster Bank Ltd UD474/81, Western Excavating v Sharp 1977 EWCA Civ 165, McCormack V Dunnes Stores UD1421/2008 AND Zabiello v Ashgrove Facility Management UD1106/2008.

The complainant’s claimed contractual entitlement of 24 hours of work per week following a transfer of undertakings in November 2016 was the subject of a grievance raised by the complainant on 8th January 2017 and investigated in line with the respondent’s policies and procedures.

I note that in the events which led up to the grievance being lodged, the complainant was on sick leave and was in contact with her Line Manager in relation to her upcoming roster. The respondent in its belief that hours were allocated on the basis of the business needs sought clarity on how the complainant would roster herself for 24 hours during such a quiet period for the Hotel. The complainant submitted a draft roster for the 24 hours work per week in the belief that it was in line with the terms of her written contract. I find that both sides genuinely believed they were acting in compliance with the terms of the written contract that they held.

A meeting subsequently took place to address the grievance on 18th January 2017. At that meeting a Director of the Respondent informed the complainant that she would not be rostered for work until the grievance had been resolved and in line with the terms of the contract and the needs of the business. I find that the actions of the respondent in not rostering the complainant for work during the grievance process was punitive in nature. The respondent was also unable to tell the complainant when she would be required to work again and also informed her that there was no need for a wedding co-ordinator in the business at that time. The complainant had almost 20 years of service in the Hotel and felt that she was being treated very badly by the new owners.

The respondent issued its decision to the complainant on 20th January 2017and did not uphold her grievance. The complainant appealed the decision on 26th January 2017 in line with the respondent’s procedures.

The Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 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.

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised 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.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer 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.”

The requirement to utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

In Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,

“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.”

Despite its poor treatment of the complainant at the initial grievance meeting, the respondent reconsidered its position and accepted the complainant’s contractual entitlements prior to the appeal stage of the process taking place. This was notified to the complainant by email on 7th February 2017. The complainant stated at the adjudication hearing that the respondent’s email on the 7th February 2017 was “too little, too late”. I note that the complainant had taken up a full-time education programme which commenced on 6th February 2017.

On that basis I find that the complainant had already decided to leave the employment before the conclusion of the grievance process. Accordingly, the claim for alleged Constructive Unfair Dismissal cannot succeed.

Having considered the submissions of both parties to this complaint, I find that the complaint of alleged Constructive Unfair Dismissal is not well founded.

The complainant stated that the respondent breached Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003(S.I. No 131 of 2003) on the basis that there was no consultation with the complainant at the time of the transfer.

The respondent’s position is that the transfer of undertakings took place on 26th November 2016 and the complaint was not submitted to the WRC until 21st July 2017. The respondent stated that the complaint is out of time.

This complaint was submitted to the WRC on 21st July 2017. The Transfer of Undertakings took place on 26th November 2016.

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

Having considered the submissions of both parties, I do not find that any reasons have been put forward to extend the period of the complaint by a further six months.

Having considered the submissions of both parties to this complaint, I declare that the complaint is out of time and is therefore statute barred.

The complainant is seeking the payment of her contractual number of hours per week for the period where she was available for work but was not rostered to attend. The complainant stated that she is seeking five weeks’ net pay in circumstances where she was not paid any salary by the respondent from the end of December 2016 to the cessation of her employment in February 2017.

The respondent stated that the complaint was submitted to the Workplace Relations Commission on 21st July 2017. The respondent contends that the cognisable period is the previous six months from the date of the complaint. The respondent’s stated that the complainant was in receipt of Jobseekers Benefit which was payable from 26th December 2016 and that she did not engage with the respondent in relation to being rostered for work following its letter to her on 20th January 2017. In those circumstances, the respondent stated that the complainant’s claim should be rejected.

In relation to this complaint I find as follows:

The complaint was submitted to the WRC on 21st July 2017.

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

Having considered the submissions of both parties, I do not find that any reasons have been put forward to extend the period of the complaint by a further six months. Accordingly, the cognisable period of the compliant is 22nd January 2017 to 21st July 2017.

The complainant stated that she was available to work from the expiry of her Sickness Certificate on 9th January 2017 and emailed the respondent on 13th January 2017 seeking to be rostered for work. The complainant attended the grievance meeting on 18th January 2017 and the respondent is noted to have told her that she would not be rostered for work until the grievance was resolved, and in line with the contract of employment and the needs of the business. The respondent also informed the complainant that it did not currently have a need for a wedding co-ordinator as it had no weddings booked at the time.

I find the actions of the respondent to be incorrect on this issue. The complainant should not have been stopped working as a result of her grievance and I find that it was also wrong of the respondent to inform the complainant that it had no need for her yet did not mention temporary lay-off or redundancy to her at the time.

I find that the respondents comments and the uncertainty relating to her employment led the complainant to make a claim for Jobseekers Benefit which was subsequently awarded and made payable to her with effect from 26th December 2016. The decision was notified to her by letter dated 1st February 2017. However, from the 9th January 2017 to the 5th February 2017, the complainant was entitled to be at work for her established 24 hours per week without restriction and was, for most of that period, unaware of the decision in relation to the Jobseekers Benefit claim.

In all of the circumstances of this complaint, I find that the complainant is entitled to be paid based on her established hours of work per week from 22nd January 2017 until 5th February 2017 (the day before she commenced a full-time training course).

Having considered the submissions of both parties to this complaint, I find that the complaint is well founded. The respondent is directed to pay the complainant 6.43 days’ pay for the period 22nd January 2017 to 5th February 2017. Payment should be discharged to the complainant within 42 days of the date of this decision.