ADJ-00014049

Complainant

Respondent

Anonymised Parties

A General Assistant

A Large Supermarket

Representatives

Appeared in Person

Shane O'Gorman IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00018107-001

22/03/2018

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

CA-00018107-002

22/03/2018

This case involves a claim for Constructive Dismissal and a breach of the Terms of Employment (Information) Act, 1994.

The Complainant is a Croatian National and presented as Lay Litigant. The Respondent is a Large Retail and Supermarket business and was represented by Shane o Gorman, IBEC. Both parties made extensive written submissions and the Respondent submitted supporting documents post hearing as requested. The Complainant appears to have sent in a table of his roster post hearing and a Chiropractor Report. Both documents were shared with the parties.

The Complainant is a Croatian National who worked as a Customer Assistant with the Respondent Business from 19 April 2016 to 13 January 2018. He received a variable payment of between €300-€350 per week for a variable 25-30 working week. The Complainant has claimed constructive dismissal and ……. He submitted that he had not found work since his Dismissal. He repatriated in March 2018. He sought the remedy of compensation.

The Complainant presented as a Lay Litigant. He outlined that he had worked without incident at the company until 2017. He had worked well in the Clothing area.

The Complainant submitted an extensive complaint form in narrative format. I have endeavoured to summarise this side by side with the evidence adduced at hearing.

The Complainant submitted that he had been denied permission for annual leave in July 2017. He had difficult family circumstances in Croatia. He was then compelled to take August and was aggrieved to learn that the leave had subsequently been granted to another colleague, who was junior to him .He really needed the July leave as his parents had relocated to Germany and were expected back in Croatia on the July dates .He felt aggrieved that his colleague had persisted with her leave request and had threatened that she would go on leave regardless .He felt that he had been overlooked for this key leave requirement .He recalled that stress manifested from then on.

In addition, he was denied the requested two days off prior to his leave, which were subsequently granted. the Complainant retained a sense of unease that they should have been granted earlier.

The Complainant had a disagreement with a Deputy Store manager during his reportage of sick leave for a stomach complaint. He called at 13.55 hrs as he was due in for a 16.00 hrs start. He taped this conversation and was unhappy at the treatment he experienced when asked to declare his return time.

The Complainant was then relocated to the Fresh Foods area.

Once the Complainant resumed work in the aftermath of his sick day, he did not feel well working in the store and he admitted that he had lost confidence. This was compounded by changes in Roster circulation during July, where he asked for Saturdays off unsuccessfully. He was informed that change was not possible. He wanted more morning shifts as an equitable arrangement and was aggrieved when these shifts were given to a student.

The Complainant decided to raise a grievance via a portal line as he didn’t feel he could address his concerns instore. Several meetings followed where he was seeking that the Respondent had breached code of Business conduct at work. He also wanted to receive an apology for the way he was treated, which he believed was tainted by discrimination. He wanted the staff with whom he had experienced difficulties to suffer consequences. He was “fed up” and experienced a high amount of “inner turmoil”

The Complainant then worked for a while on Check Out. He decided to seek a transfer nearer his home and this took 2 months to arrange. He was aggrieved by the delay and published a personal Facebook message to that effect. He pinned a copy to his submission.

The Complainant was dissatisfied at the Grievance outcome in October 2017 and appealed it in full. He attended an appeal hearing in November 2017. The Complainant believed that he was disadvantaged by the delay in processing his complaints which made him feel worse.

In the meantime, he declared that he had fitted in very well in the second store, which was much better than Store 1 where he felt supported and his back condition was managed. there were no issues with trolley management. It was a new start and the staff wanted him to stay on when he handed in his notice on 30 December 2017.

He received the Grievance outcome on January 10, 2018 but pressed on with his resignation. He contended that he had been disadvantaged by the delay in issuing the outcome. The Complainant also stated at hearing that he believed that he had to resign to access social welfare payments. He did not submit details of loss or mitigation and submitted that all jobs he looked foe were in Croatia.

The Complainant confirmed that he had worked two jobs since 2015, I month in 2015 and a 2-month period in 2016. He stated that he had not received induction at the store. He was unaware of the company Doctor facility. He undertook to submit details of his back injury.

During cross examination, the complainant accepted that this grievance had been screened at company headquarters on 12 August. He confirmed that he had only received the company handbook post his termination of employment. He denied that his change of heart was prompted by his relocation from the clothing department to the Fresh section. He confirmed that he answered to a Polish Manager in both stores and couldn’t recall raising the topic of discrimination with them.

The Complainant confirmed that he had approached Mr A for a job for his girlfriend prior to his lodging the grievance procedure.

He confirmed that he had received a Value award on 28 July 2016. He was upset by his treatment at the company as he believed that he had done a good job.

He Complainant confirmed that he had understood the concept of bias but had not raised it before the Appeal Mechanism. Mr A did not know that his sister was the person who the complainant referred to as he had not named her. The Complainant accepted that he had not named the person at grievance stage. He accepted that he had not availed of any of the company supports of Staff Representative, Human Resources and EAP.

He did not accept that staff may have retained historical legacies of working arrangements in their contracts of employment. He maintained that the Respondent only acted on a back-management plan to avoid a law suit.

The Complainant concluded his case saying that no one at the company had been available to hear his case impartially. The Company had broken the code of conduct and had not considered the evidence he presented. He re-affirmed that he had been compelled to resign for his personal welfare.

CA -00018107-002 Notification of Four Week Roster

The Complainant submitted that his agreed contract reflected prior notice of one week about rosters. He submitted that this had been unilaterally changed without agreement or written notification. He submitted that this had served to act as a deterrent to managing his daily living arrangements. He had been refused requested time off.

The Respondent operates a leading Retail and Supermarket Business and has disputed both claims in their entirety.

The Respondent disputed the complainant’s allegations that:

1.       He had been subjected to a biased grievance procedure.

2.       Subject to a four-week roster rather than the previous one week.

3.       He had lost out on annual leave allocation

4.       He had been treated differently as he was a “foreigner “.

5.       The Grievance outcome left him with no other option outside resignation.

The Respondent submitted that the company had followed its own procedures to the letter and the complainant had resigned prior to the outcome of the Appeal dated 10 January 2018. The Respondent sought that the claim be termed misconceived as the company had not treated him unfairly or less favourably. While, the complainant had not made a formal complaint of discrimination, the Respondent representative wanted the hearing to be aware that 37% of Store 1 were of international origin, where two Mangers were Polish.

The Respondent recounted that the Complainant had used the vehicle of the company whistleblowing policy to submit his complaints in August 2017. This prompted an investigation under the company grievance procedure by the Manager of Store 1. The Grievance was denoted as:

1.       Annual Leave Denial on a date

Findings: Ms A had not been threatened by the staff member who secured the dates the complainant wanted. A Clear Policy on Booking leave to follow.

   2       Relocation from Clothing to Fresh Foods (Seniority should prevail)

Findings: Unsubstantiated as the complainant had accepted that he could be moved anywhere and did not submit the name of the person who he believed wanted him moved.

3 Discrimination in the Clothing Department

Unsubstantiated as roster was completed on a fair basis on the needs of the department. The Complainants contract was honoured, and the store had a liability to honour other contracts.

4 Friday and Saturday not given as days off prior to leave

This allocation was agreed a month before the leave was given. The store offered to set up an explanatory process where requests were submitted early, and swops facilitated.

5 Habitual Refusal of Off Duty Requests

Unsubstantiated: The Investigation conclude that the complainant had been granted 3:4 of his requests

6 Not requested to store public holidays

The Investigation concluded that the complainant had not named he person who told him he could not store public holidays

7 Approached to shorten break time

Time and Attendance system yielded no deviation from correct break times

8 Manner in which approached when Complainant rang in sick

The Taped conversation retained by the complainant was inadmissible as Mr B had not given permission to the taping. Findings Inconclusive outcome.

The Complainant was offered and declined representation. The Respondent held several meetings with the complainant and named staff in the grievance document. The Respondent became aware of an injury reported by the complainant and to accommodate him, he was offered two opportunities to transfer to accommodate his back condition. He accepted the second offer of Store 2.

The Grievance outcome was shared with the complainant on 10 October 2017. The Complainant refused representation. The Company determined that that the complainant had not been treated unfairly but proposed a communication strategy to be put in place by store management.

“… Whilst I note that there were certain situations that occurred that you felt aggrieved, but I do not find that Ms A or any other colleague you refer to acted unfairly. It is important that you are aware of the policies in place to ensure that such situations do not occur in the future as you will have a full understanding of the processes and procedures in the store. Through my investigation, I did find that there could be better communication in the department and that when a decision is made that colleagues should be aware of why such a decision was made that impacts on colleagues. This will be discussed further with management in store. Your line Manager will bring you through the relevant policies regarding holiday bookings, rosters shift swaps and public holidays …………I found that some of your allegations were based on assumptions and when investigated there was no evidence to show that you were treated any differently to other colleagues.

The Complainant submitted his 10 grounds of Appeal of the findings on October 13, 2017 which incorporated:

1.       The Investigator was related to the person he had problems with, so conflict of interest pertained.

2.       A Staff Member had blackmailed Ms A to get leave over the complainant

3.       The Complainant was unjustly redeployed from the Clothing Department to Fresh Department

4.       Issue was taken with all aspects of the outcome and the Complainant submitted that the Company permitted legal bullying.

In addition, the complainant registered his disappointment that he had not received an apology from the store manager. he felt diminished when the investigator had laughed at his referencing the law in taping conversations.

The Respondent submitted that the Complainants Facebook posting which criticised the delay in effecting his transfer published on 21 October 2017 was a major disappointment.

The Appeal proceeded on 17 November 2017. By then the complainant had relocated to Store 2 on 13 November. The Appeal was heard by a Manager from a Different Store.

The Complainant resigned dated 30 December 2017 and cited stress and the absence of an apology. He stated that

“working for the same company that employs people who ruined my physical and mental health is an issue I can’t face with anymore because my health and well being is the most important thing in my life right now ………This is not an easy decision to make. I am thankful to the management of Store 2 for offering me a chance for a fresh start and for everything they have done , but nothing has changed in regards to what maters to me most , being happy to work for the Respondent and have no problems at work , so my final decision is to quit ….Regardless of my notice, I still want my grievance appeal to be resolved and questions answered .”

The Respondent met with the Complainant and confirmed that the resignation would not be processed whilst his grievance was outstanding. He received the outcome on 12 January 2018. The Appeal did not uphold the complainants appeal. The Complainants last day of work was 13 January 2018.

The Respondent contended that the respondent had invested substantial hours into hearing the complainant’s grievances, including interviewing the staff members referred to. The Complainant lacked substance and evidence in his submissions throughout. He sought to be treated in isolation as a single employee “above the rest of his colleagues, which is unattainable”.

The Respondent disputed that the Complainants transfer request had been deliberately delayed and exhibited a Transfer Policy and the Complainants own transfer request form which pointed to a satisfactory experience at Store 1.

Witnesses:

Mr A, Store Manager 1

Mr A contended that the complainant had not declared any injury during the initial grievance procedure. The live issue was the grievance. He was accommodated on check out for a two-month period once his back injury manifested and his transfer request was facilitated as he understood that he was tired of driving

Mr B Store Manager 2

Mr B submitted that he understood the complainants need for transfer as he shared a car with his partner. The Complainant thought that trollies were involved in the proposal to transfer to bakery and resiled from the proposal. The reality was that no set person was allocated trollies in store 2, instead there was an agreed ratio of 4:1 trolley to person.

He recalled that the complainant ha handed in his notice in late December. He took advice as the complainant was still a new employee to him. He informed the complainant that he could not accept his notice while the grievance was live.

The Complainant confirmed that there was nothing outstanding against the company and he was repatriating back to Croatia.

During cross examination, Mr B recalled that he had been informed that the complainant had misunderstood the first in time proposed relocation to the Bakery. He was aware that he had not received an outcome to the grievance lodged in store 2. He knew the Investigator was delayed in her completion through injury.

The Complainant addressed Mr B in saying that he knew if he wanted to leave to get his welfare payments, resignation was necessary.

In their legal submissions, the Respondent relied on the application of Conway V Ulster Bank UD 474/1981. He submitted that the Company had not breached any aspect of the contract and it was the complainant who deviated from the essential terms of the contract when he posted his personal statement of dissatisfaction at the delay in relocating stores in September 2017 and by veering outside the grievance procedure by having recourse to the “whistleblowing line “.

Furthermore, the Complainant had not fallen foul of the reasonableness test as per Fitzgerald V Pat the Baker {1999} ELP 227, EAT. The Complainant had no reason to resign his position at the time of resignation and submitted that the facts of the case had to judged objectively, reasonably and sensibly to determine if the employee could not be expected to put up with the treatment. The Respondent relied on Kenouche V Four Star Pizza UD 962/2008 and quoted:

The conduct of the employer referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the resignation by the employee.

The Respondent contended that the criteria had not prefaced the resignation by the complainant.

The Respondent Representative submitted that the complainant had not satisfied the burden of proof underlying constructive dismissal in either his narrative or in evidence.

CA -00018107-002 Notification of Change in Terms of Employment

The Respondent disputed the claim and re-affirmed the grievance outcome which pointed to 4-week rosters being the universally practiced work system as suggested by staff themselves. The Complainant had benefitted from this system by receiving time off in advance.

I have considered the facts of this complex case. I have also read and reviewed the documentation submitted. Finally, I have considered the post hearing documentation submitted and note that the complainant did not submit details on his loss and mitigation. he had undertaken to complete this task.

The Complainant submitted two claims dated 22 March 2018@ 23.45 hrs. These were

1 Claim for Constructive Dismissal

2 Claim for breach in Terms of Employment (Information) Act 1994

At that time, he listed a nominated representative. The WRC confirmed the status of both complaints and correspondence was exchanged between the parties. At all times the complaints were referred to without additional commentary as those listed above. the Complainant made oral and some written reference to being discriminated against, yet he has not formalised his complaint in that vein at any time. Therefore, the claims before me for decision are those registered as having been received on 22 March 2018 some 9 weeks post the termination of his employment. He received one requested postponement and one refusal to grant the hearing via skype in advance of the eventual hearing on 28 September last.

CA -00018107-001 Constructive Dismissal

Firstly, the complainant has claimed that he was constructively dismissed. This reflects an involuntary termination of employment and is provided for in Section 1 of the Unfair Dismissals Act 1977

The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or 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

In this case, the complainant gave two weeks’ notice and left his employment on 13 January 2018, having received the outcome of a Grievance appeal the preceding day. The sequence of events highlighted by both parties required very careful consideration by me.

The Complainant, a Croatian national submitted that all had been fine at work for him until the Summer of 2017. This was not disputed by the Respondent and in fact, both parties agreed that the complainant had worked hard and been awarded a Merit award in 2016.

For my part, I noted an early conflict in evidence. The Complainant had submitted that he had not received the staff handbook or notification of policies until after his departure. The Respondent submitted signed copies by the complainant from April 2016 and August 1, 2016 in respect of the handbook. In addition, I noted that the complainant did not draw attention to any existing physical illness or injury in his pre-work Health Questionnaire dated 12 April 2016.

In this case, I must decide whether the complainant experienced circumstances to justify his early termination of employment. In so doing, I must have regard for the actions of both the employee and the employer under the umbrella of the Contract Test and the Reasonableness Test.

Contract Test:

This is where the Complainant argues that he is entitled to resign his position and was summarised by Lord Denning in Western Excavating (ECC) ltd V Sharp [1978] ICR 221 as:

“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 future performance”

The Complainant has attributed his departure to the actions of the company staff who he says ruined his physical and mental health. This is a very serious allegation and required considerable probing on my behalf. I noted that the complainant presented with back issues late in his employment and these were reflected in a back to work report dated 30 September 2017. I noted the Chiropractors report which did not narrow the origin of the back injury to time but referred to causation being the move to Fresh area.

The Complainant was relocated from Fresh services to Check out while efforts were made to organise his requested transfer to a Store in the town where he lived .I reviewed his transfer request and noted that the Complainant was keen to relocate stating that he had adjusted to life in the Fresh Dept .I believe that this constituted fair treatment by an Employer and reflected a commensurate action in the face of a medical recommendation . I note the Respondents lingering disappointment at the Facebook 21 October posting which they argued had the potential to create an operational and reputational issue for the company, yet, Disciplinary action was not advanced at that time. I note that the complainant responded by affirming that it was not a public document. However, I was at a loss to understand why the posting had not been removed by the complainant in the intervening period. He achieved his transfer in mid-November and acknowledged that he was happy in store 2.

I next reviewed the pathway of the grievance dated August 2017. This was lodged some 16 months into a previously uneventful period of employment but importantly for me at least in the immediate aftermath of his relocation from Clothes to Fresh Department. The Grievance pathway did exceed the recommended time length of three days as the Investigator met with the complainant twice and many others mentioned in the grievance. The issue of the annual leave oversight was partially upheld. The Complainant did not see this as a victory and appealed the grievance in full. I note in the Company Holidays procedure that priority for holidays should be given firstly on seniority of position and then of service. Both parties accepted that the system relied on for annual leave allocation was wrongly administered and the company undertook to rectify this going into the future. I found that the complainant tended to reflect events which post dated August 16 in his eventual grievance appeal.

I note that the complainant had very fixed ideas of remedies sought on this issue and he sought drastic action of dismissal of another employee. This is a wholly unrealistic goal. While I fully appreciate that the complainant lost out on leave which he ought to have been in line for, he did not recover from being overlooked for this important leave and his relocation from Clothes to Fresh Dept. While he surrendered his complaints to management, it appeared to me, at least that he wished to retain ownership of them.

I appreciate that the complainant had a compelling family need to access those weeks in July 2017 and the Company was unfair in the selective administration. However, I accept that the complainant did not make his dissatisfaction known until the leave had expired. This was too late for a Plan B for the complainant. I accept that he retained a very pronounced sense of injustice at how he perceived he was treated at this point but by not lodging a particularised grievance at that point citing the seniority clause he missed out on the opportunity to resolve matters.

On reading the grievance lodged on the confidential line in August 2017, I was struck by lengths that the complainant went to write a grievance. This was not replicated in any oral communication in store. I appreciate that it is sometimes easier to write than discuss. I have found that the complainant had a very strong sense of self and a sense of a one-dimension resolution to his issues. When this was not shared by the company, he viewed it as a breach of the Code of Business Conduct.

For my part, I could not establish that the initial grievance was unduly delayed given the breadth of issues for investigation. I have concluded that the complainant may have benefitted from representation to assist him in realising that he had achieved a positive outcome on the annual leave allocation in terms of having influenced a positive and just change at the store. He chose to tackle the case alone.

I found that the Appeal was delayed by the Appeal Managers illness and the time of year being busy at the Respondent business.

However, I was struck by the undisputed noted improvement in the complainants working life since he started in Store 2. He really enjoyed the store and I could not establish that the complainant has established grounds from which I could infer that on 13 January 2018 he was forced to leave his position through a breach of a fundamental aspect of his contract. True, the appeal had failed to live up to his expectations, however, he had resigned before this was released and he still had an opportunity to present that case to the WRC in the company procedures.

I am persuaded more by the Complainants own admission that his resignation was linked to his decision to claim social welfare, which would only be obtainable on his resignation. He did not dispute Mr Bs evidence that he had decided to repatriate. For my part, I noted that he had not sought a reference on his departure and had not formalised a response to the outcome of the Appeal received one day before he left. In addition, he had not demonstrated the requested evidence of loss and mitigation.

I must conclude that the complainant has not reached the burden of proof set down in Section 1 of the Act in relation to the Contract Test.

Reasonableness Test:

The Respondent referred to the application of Conway in this case. The EAT in that case considered that” the complainant did not act reasonably in resigning without first having substantially utilise the grievance procedure to attempt to remedy her complaints”

In the instant case, the complainant had utilised the grievance procedure but had not engaged in the outcome as he had dated his intention of leaving almost two weeks prior. His notice was placed on hold pending the outcome of the grievance which did not go completely in favour of the complainant. I appreciate that the delay in bringing matters to conclusion may have irritated the complainant, however, during this time he made great strides to secure a safe workplace, which he did in moving to the Chiropractor recommended trollies for a 2-month period prior to his endorsed transfer to store 2 in mid-November.

I have found that the complainant was unreasonable in taping the conversation regarding his sick leave with Deputy manager at Store 1. All employment relationships are built on the foundation of trust and confidence and this practice fractured the relationship.

In addition, I found the posting on Face Book, whether private or public completely unnecessary and a maverick action. The Complainant had just appealed his grievance and ought to action another grievance directed at the delayed transfer instead of veering into a personal posting on face book. It was fortunate that the Respondent had a Transfer Policy and I found that the complainant was unreasonable in his Face Book posting. I accept that he was versed in the Social Media Policy and ought to have anticipated a negative fallout from this posting.

I found that the Complainant did not reflect on the strict terms of his agreed contract of employment which described him as a fully flexible employee when he raised the issues around allocation of redeployment days off and public holidays. I do not propose to go into a rehashing of the Grievance procedure utilised, suffice to say that the complainant may not have appreciated the exact terms of his contract which permitted reasonable deployment and rostering. I did not identify that seniority was mentioned in relation to rostering, just in respect of annual leave outlined in the company Holiday procedure.

I note from the case law that many complaints are raised in relation to mobility clauses in contracts, Conway and Brannigan v o Connors Blue jeans ltd UD 1030/2005 applied. However, in this case the complainant accepted a redeployment within the store 1 and a voluntary transfer later. He also availed of one voluntary transfer to a store 2 which was nearer home. I cannot find that he was disadvantaged in this regard.

I accept that the Complainant carried a high sense of isolation in store 1 and actioned the grievance procedure. I found that he was very much focussed on his own performance and pathway and missed the nuances of other colleagues

In deciding whether the reasonableness test can be applied in this case, i.e. was it reasonable for the complainant to respond with his notice of resignation and resignation on 30 December 2017 and 13 January 2018? I must find that the decision to terminate employment was not an involuntary action but rather a pre-meditated action linked to his plan to repatriate.

My reasons for this statement are that I have not been met with the any evidence of the erosion of the complainants physical and mental health as stated. I did see a high level of disappointment and frustration accompanied by a defined sense of needing to self determine his working life , but no tangible evidence that the complainant’s health had disintegrated as submitted. At the time of his termination, he had made a successful voluntary transfer to Store 2 where he was liked and approached to stay on. He had not reached out for the company supports of Occupational Health, EAP or representation. I cannot find where he placed the Respondent on notice of this complete erosion in health. I have not accepted that the complainant was “too shy “to raise the issues. I found that while he was clearly troubled at work in store 1, the management accommodated him in his stated wishes, health, personal needs and a mutually agreed improvement followed.

I did establish that the complainant formed a fixed view early in the case on how conflicts should be resolved and when he did not achieve these outcomes sought via the grievance procedure he did not stay around to resolve his issues at an alternative forum. I found that he was overtaken by his plans to repatriate.

I have found that the complainant has not satisfied the burden of proof in respect of a Constructive Dismissal and I find against him on this occasion.

CA -00018107-002 Notification of Change in Terms of Employment

The Complainant submitted that his agreed contract reflected prior notice of one week about rosters. He submitted that this had been unilaterally changed without agreement or written notification.

The Respondent disputed the claim.

Section 5 of the Act addresses the requirement or changes to be notified in any of the furnished by the employer.

Notification of changes.

5

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3or4.

I note from the primary grievance raised by the Complainant, where it stated:” The rosters recently started coming in 3 weeks in advance, which I have no complaints about” He went on to say that he had difficulties securing Saturdays off and had been refused 7 to 8 times.

The Respondent did not submit a notification in accordance with Section 5 of the Act. I note that the rosters as outlined in the contract of employment would be encompassed under Section 3(1) (i) of the Act and the failure to demonstrate notification amounts to a technical breach of the Act.

I find the complaint to be well founded.

Decision:

CA -000018107-001

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

I have found the claim for Constructive Dismissal has been unsuccessful.

CA -00018107-002

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the complaint in accordance with the terms of the Act.

I have found the complaint to be well founded and I order the Respondent to pay the complainant €300.00 in compensation in respect of the breach of Section 5 of the Act.

Constructive Dismissal and Terms of Employment