UDD1849

The Law – Unfair Dismissals Act 1977 (“the Act”) – Section 1 of the Act, in relevant part, states:-

“ dismissal”, in relation to an employee, means—

(a) Not relevant

(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,

(c) not relevant

Section 6 of the Act, in relevant part, states:-

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Paragraph (b) above applies where an employer behaves in a way that amounts to a repudiation of the contract of employment. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 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 discharged from any further performance”.

Where an employer commits a repudiatory breach of contract the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.

The section also deals with a situation in which the employer conducts 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. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.

The Complainant in this case asserts that the Respondent conducted its affairs with her in such an unreasonable manner that she could not fairly be expected to put up with it any longer.

The Complainant returned from annual leave and was told she had a further four days of her entitlement still untaken. She had arranged a four-day holiday and on 8 August 2016 sought permission from her Manager, Ms Pamela McCann, to take an additional day’s leave in order to facilitate her travel back to Dublin. When making the request she offered to make up the time. However, Ms McCann did not approve the additional day’s leave explaining that she would be short-staffed and required her attendance in the warehouse in order to meet work demands.

The Complainant was upset by this and felt she was being penalised. She made a comment to the effect that she was paying the price for being honest and observed that she could have gone sick had she been dishonest and so minded.

A difficult exchange followed.

The following day, 9 August 2016, Ms McCann called the Complainant to a meeting to discuss what had occurred the previous day and to issue her with an informal warning. Ms Kay Dooley, the Financial Controller, accompanied Ms McCann at the meeting.

The Complainant, in accordance with the Respondent’s procedures, sought representation at that meeting. Ms McCann asked the Floor Supervisor to attend as the Complainant’s witness. He agreed to do so. The Complainant neither objected to nor approved of this selection.

At that meeting Ms McCann expressed her concerns at what had transpired the previous day and following a brief exchange issued the Complainant with a letter she had previously prepared. The meeting ended acrimoniously.

The Complainant accepted the informal warning and considered the matter closed.

On Wednesday 10 August the Complainant was called to a further meeting which was attended by Mr Fred Penny, the Managing Director, and Ms Kay Dooley. The Complainant was accompanied by a fellow employee of her choice. However, Mr Penny told her that the meeting was informal and that she could not be accompanied. He sent the Complainant’s colleague back to work.

Mr Penny advised the Complainant that he was not happy with how she behaved at the meeting with Management and asked her what was going on from her side. The Complainant stated that she was stressed and that she thought this matter had been dealt with the previous day. Mr Penny responded that the matter was not finished and that she had stormed out of the meeting the previous day. Ms Dooley reminded her that she had replied to Ms McCann’s admonition “I can’t have you speaking to me like that” with the response “why, what are you going to do about it?”. She sought to advise her that such behaviour was not acceptable. The Complainant indicated that she was feeling bullied. That conversation did not progress further.

The meeting ended with Mr Penny advising the Complainant that he intended referring to his HR advisors and would revert to her after he had done so.

Later that morning Ms Dooley spoke to the Complainant and passed her a copy of the bullying procedures in place in the Company. She also advised her that her behaviour at meetings with Management over the previous days was not acceptable and was under review with the HR advisors. She was advised that any unauthorised absence would be dealt with through the disciplinary procedures.

Nothing of relevance occurred until 19 September 2016 when Mr Jason Penny, the Operations Manager, wrote to the Complainant setting out three matters that she was required to address. She was advised she could be accompanied at a meeting to discuss those complaints by a colleague or by a trade union official of her choice. The meeting was arranged for 21 September.

The charges set out in the letter were

(1) Alleged poor conduct and attitude towards your managers on 8 August 2016. Further particulars being that you were refused time off requested and you told one of the Directors in a very aggressive tone “I can’t take unpaid leave and I can’t go sick, do you think you own me” and you also said when discussing organising staff that “that’s your job” referring to a Director.

(2) Alleged failure to follow a reasonable management instruction – specifically refusing to attend a meeting when requested on 9 August 2016 in relation to time off requested

(3) Alleged poor conduct and attitude towards your managers in the meeting on 9 August 2016. You also left the meeting after saying “what are you going to do about it”

The letter went on to state that non-attendance at the meeting may in itself be treated as failing to obey a reasonable Management instruction and that this failure itself may be added to the matter(s) of concern already under consideration. It went on to further state

“I am also obliged to remind you that a failure to follow reasonable management instruction may be deemed to be gross misconduct, the penalty for which could also lead to the summary termination of your employment”.

The Complainant responded on 20 September stating that she would attend the meeting as directed for fear of the consequences of not attending. She also stated that she understood that the letter issued to her on 9 August by Ms McCann ended the matter with the inclusion of the following statement “On this particular occasion, the company has decided not to proceed with formal disciplinary action”. She expressed astonishment that she should now be called to a disciplinary hearing arising out of a matter she had been told was closed. She concluded by stating that this recent letter had caused her enormous stress.

The meeting took place as arranged on 21 September. At it both sides repeated their previously stated positions. When the Complainant raised the letter issued to her at the meeting on the 9th August the Respondent replied that it was acting on the advice of its HR advisors. It stated that the letter of the 20th had been issued on their advice and the meeting was the outflow of that letter.

Following that meeting the Respondent issued the Complainant with a “written warning” to remain on her file for twelve months.

The Complainant, by way of letter dated 23 September 2016, submitted an appeal against the formal warning.

The Complainant was then absent through illness for a period of time. The Respondent wrote again to her on 3 October noting receipt of the appeal and stating that it would arrange an appeal hearing when she resumed work. It also noted the fact that the letter contained a number of complaints and grievances. It offered her a copy of the grievance procedure through which she could formally pursue those complaints and grievances.

The Complainant returned to work on 8 November 2016. However, during her illness the Respondent Company suffered a significant downturn in business. All its employees were placed on reduced hours. As a consequence, the Complainant’s hours were reduced from 25 to 15 hours per week

Some two days later on 10 November 2016 the Complainant was laid off along with two other members of staff.

That letter stated:-

“It is with regret that, due to the loss of the Amazon Seller Central Platform which has put the company in severe financial difficulty, the company now has to notify you that you are being laid off in accordance with your contract, with effect from close of business 10 November 2016.

May we assure you that the company is doing everything possible to have the platform reinstated by making numerous appeals to Amazon via their appeals process and the use of an independent Appeals Officer. Furthermore, we are now following legal advice. We will notify you as soon as you are required to recommence work.

As you may be entitled to benefits, this letter should be taken to your local Social Welfare office as proof of you’re being laid off”.

On 16 November 2016 the Respondent wrote to the Complainant noting that she had been paid for 25 hours work in week commencing 21 September but had in only worked for 12 hours. It decided to waive 5 hours and notified her that it had deducted 4 hours from her pay that week and would deduct the final 4 hours outstanding when she returned to work.

On 16 November 2016 the Respondent wrote to the Complainant stating

“the company has reviewed the disciplinary process taken and can confirm that after review of all the facts have taken the decision to rescind the warning issued on 23 September 2016”.

Arising out of the layoff on 10 November 2016 the Complainant attended at the Social Welfare Offices to claim Job Seeker's Allowance. She was asked to provide a copy of her P45 Certificate. She asked the Respondent for the Certificate.

The Respondent replied as follows “Liz you have not been dismissed from your employment, you are still an employee of the company. You were placed on a temporary lay-off as per your contract. I will send you a letter clarifying exactly what that entails today”. The text message was signed by Mr Jason Penny. That text issued to the Complainant on 2 December 2016 and stated that she had been placed on temporary lay-off and that she would be called back to work when the issues that gave rise to the lay-off had been resolved.

On 13 December 2016 the Complainant wrote to the Respondent setting out a detailed list of grievances and finished off stating that she felt she had been victimised by the Respondent in the manner in which it had treated her since 9 August 2016.

Mr Fred Penny replied to that letter on 15 December 2016 stating that it would hear her grievances at a meeting that it set for 19 December 2016.

The Complainant was not available to meet on 19 December and so advised Mr Jason Penny by sms message as she did not have contact details for Mr Fred Penny. She followed that up with a letter dated 19 December setting out the reason for her inability to attend the arranged meeting.

She also requested that the rearranged meeting be scheduled for a place other than the Company premises as she was finding the entire series of events very stressful.

On 21 December Mr Fred Penny replied proposing to meet in Costa Coffee in Liffey Valley Retail Park on 6 January 2017 at 9.30 am. He said he would be accompanied by Mr Jason Penny and gave his contact number should any difficulties arise.

The Complainant notified the Respondent on 4 January that her representative was unwell and consequently would not be able to attend the meeting on the 6 January 2017.

The Complainant at this point was represented by the Citizens Information Service. On her behalf the Service wrote on two occasions in January 2017 seeking a meeting with the Respondent. Both letters went unanswered.

On 16 February Mr Fred Penny sent a note to the Complainant proposing to meet on Friday 24 February 2017 at 10 am in the Company’s offices. That letter was not delivered to the Complainant due to a mistake that was made by its Courier Company. In the interim the Complainant by letter dated 21 February resigned her position with the Company. The letter of the 16 February was delivered to the Complainant at 12.30 on the 22 February postdating the receipt of the Complainant's resignation by the Company by some five hours.

On 1 March the Respondent wrote to the Complainant acknowledging receipt of the letter of resignation and noting that her last day of service would be 23 February 2017. It enclosed her P45.

The Complainant made a complaint of constructive dismissal to the Workplace Relations Commission on 16 March 2017.

An Adjudication Officer heard the parties in relation to the complaint and by Decision delivered on 25 January 2018 decided as follows:-

For the reasons set out above I do not uphold Complaint CA-10424-001 and it is dismissed.

The Complainant appealed against that decision to this Court. The Court heard the parties in relation to the complaint over two days 14 June and 22 August 2018. Both sides made comprehensive written submissions on the matters before the Court. The Court also heard from the following witnesses:-

The Complainant;

Ms Pamela McCann;

Ms Kay Dooley;

Mr Jason Penny;

Mr Darren Stringer; and

Mr Fred Penny.

Findings of the Court

The complaint is one of constructive dismissal. Accordingly, in accordance with settled law the Court must determine whether the conduct of the Employer in relation to the employee, was so unreasonable that the employee cannot fairly be expected to put up with it any longer.

The evidence before the Court discloses that there was a growing estrangement between the Complainant and the Respondent. This was surprising as the Complainant was a personal friend of the mother of a Director of the Respondent Company. She had been employed as a consequence of that friendship and the relationship between herself and the Directors of the Company was very close. Her husband worked for the Respondent and her daughter was employed in the Company during her summer holidays.

However, the relationship deteriorated following the Complainant’s request for an additional day’s leave in August 2016. What followed was an escalating series of meetings that ultimately led to the Complainant’s decision to resign her position with the Company.

She claims that her treatment by the Respondent Company was so oppressive that she could not be expected to tolerate it a moment longer and as a consequence her decision to resign amounted to a constructive dismissal by the Respondent.

The Court does not accept this view. The Court finds that there were tensions in the employment relationship that were being worked through by the Respondent however imperfectly.

The Complainant had received an informal warning from Ms McCann arising out of their engagement regarding the requested additional leave. The Complainant did not appeal against that informal warning. However, her behaviour at that meeting gave rise to further concern at senior Management level. The Complainant was invited to a further meeting with the Managing Director to discuss the direction in which the relationship was developing. He was concerned that the matter was getting out of hand. He sought to address and resolve whatever issues were giving rise to the deteriorating relationship between the Complainant and senior Management. There is no question, however, that the meeting was badly managed and in turn got out of hand. It made matters worse rather than better. The Complainant played a significant role in determining the direction in which the meeting developed.

The Respondent Company took advice. A formal charge was levelled at the Complainant. Again, this was hamfisted. However, the Complainant was given the opportunity to assess the issues set out in the letter, to be represented and to make whatever submissions she wished to in relation to those matters. The Respondent issued the Complainant with a formal warning arising out of this disciplinary hearing.

At that point the Complainant was absent from work through stress. While out on sick leave the Respondent Company experienced an existential crisis that required it to initially put all staff on short-time working and subsequently to lay off a number of members of staff. The procedure for selecting staff for lay-off was imperfect, however, the Court found that it was an honest effort at retaining staff with the optimum range of skills to take the Company through the difficulties it was facing.

As a consequence of the application of this procedure the Complainant was laid off. She understood this to mean that she had been dismissed. In this regard the Court has examined the letter issued to her when she was laid off and finds that it is very clear that it made provision for her return to work at the first available opportunity. Accordingly, the Court finds that the misunderstanding of the nature of the lay-off lay with the Complainant and was not caused by the Respondent. When the nature of the lay-off was queried the Respondent immediately sought to reassure the Complainant that it was the result of temporary trading difficulties that it was working to reverse. It was very clear that the Complainant’s employment had not been terminated.

Around this time the Respondent reviewed the formal warning it had issued to the Complainant and decided to set it aside. It so notified the Complainant.

The Complainant, on 13 December 2016, sent a list of grievances to the Respondent. The Managing Director immediately sought to meet with her to address them. It was not possible for the Complainant to meet due to the short notice of the first meeting and the unavailability of her representative for the second. A further meeting was eventually offered to the Complainant. However due to an error on the part of the Courier Company the Complainant had resigned before the invitation to that meeting had reached her.

The Court must consider whether or not the Respondent’s behaviour towards the Complainant amounted to constructive dismissal of her within the meaning of the Act.

In this regard the Court finds that the Respondent’s behaviour was procedurally imperfect but at no stage was it oppressive. The Complainant was significantly in control of her relationship with the Respondent. The Court finds that following Ms McCann’s assessment that she could not accommodate the Complainant’s request for an additional day’s leave, she (the Complainant) became difficult to manage.

A formal warning was issued to the Complainant which was subsequently withdrawn on appeal.

The Complainant had served a grievance on the Respondent by letter of 13 December 2016. The Respondent made several efforts to meet with the Complainant to address the issues raised. It was not possible to meet on the nominated days. The Complainant asked that the meeting take place outside the Company premises. The Respondent agreed to that request. However, the Complainant could not attend that re-arranged meeting.

Finally, the Complainant resigned her position so notifying the Respondent by letter dated 21 February 2017. Coincidently, the Respondent by letter dated 16 February 2017 had invited the Complainant to a further meeting to discuss the grievances raised in her letter of 13 December 2016. However, that letter was lost by the Courier Company and did not reach the Complainant before she submitted her resignation. The Complainant then instituted the instant proceedings claiming constructive dismissal.

Constructive dismissal arises in very limited circumstances. It requires either a fundamental breach of the contract of employment or oppressive behaviour on the part of the employer such that no reasonable person could be expected to tolerate it.

In this case the behaviour of the Respondent was imperfect but falls short by a considerable distance below that bar. The Court finds that the Respondent reasonably refused sanction for an additional day’s leave. That decision fractured the relationship. What flowed from it was repeated efforts by the Respondent to put the relationship back on a proper footing. However, the Complainant saw these efforts to resolve the problem as further efforts to undermine her. In that regard she was mistaken.

Based on her mistaken perception of what was taking place she submitted a list of grievances. Management sought to address these. However, she was not available for good reason to deal with them. Neither side was culpable for the delay that followed. However, the Complainant decided she could take no more and resigned her position.

The Court finds that the key issue here is the Respondent’s behaviour towards her and not how the Complainant perceived it.

In that regard the Court is fully satisfied that the Respondent’s behaviour was at all times focused on repairing the relationship rather than oppressing the Complainant. While it made mistakes in the manner in which it went about it the Respondent did not breach a fundamental provision of the contract of employment. Neither did it behave in a manner towards the Complainant that could amount to constructive dismissal.

Instead the Complainant was dissatisfied with the manner in which she was being treated. She decided she could not put up with it any further and she resigned her employment.

She may, from her perspective, have been justified in resigning her employment. However, her perception notwithstanding, the Respondent’s behaviour was not oppressive on the one hand and did not amount to a breach of a fundamental term of the contract of employment on the other.

For these reasons the Court finds that the complaint is not well-founded. The Court affirms the Decision of the Adjudication Officer. The appeal is not allowed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
6 September 2018.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.