Complainant

Respondent

Anonymised Parties

Ms, A

Employer

Representatives

Solicitors

 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-00018761-001

27/04/2018

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

CA-00018761-002

27/04/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 (CA-00018761-001) wherein it is alleged that the Complainant had to leave her employment due to the conduct of the employer (or others) at her place of work.

Further, the Complainant is seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991 (CA-00018761-002) wherein it is alleged that the Complainant is entitled to sick pay, pursuant to her contract of employment and should have received sick pay on the 6th, 13th, 20th and 27th April 2018 as she had been on certified sick leave.

The Complainant was employed as a general deli assistant in the convenience store (the predecessor of the Respondent Company) on the 10th March 2008. The Complainant continued to work in this location until the she resigned from her employment on the 27th April 2018. Upon her resignation, her role with the Respondent Company was of deli manager/retail and her gross pay was €500.00 gross per week for 37 hours worked.

On the 30th March 2018, the Complainant had finished her shift at approximately 13:30. Latterly, she was informed by two colleagues that the CCTV cameras, within her workplace, were being used to focus on the Complainant chatting with a friend, getting into a car and at a nearby residential premises. It was alleged by two fellow employees that this footage was being replayed within the shop premises and was visible to customers and staff. It is alleged that CCTV cameras and the aforesaid footage being played were being operated by the Manager of the Respondent Company.

The Complainant was shocked and distressed to be informed of this occurrence and informed her Manager later that evening by email that she found his behaviour an invasion of her privacy. The Manager replied with a vigorous denial and suggested a meeting on her next day of work and further indicated that a third party may be required in order to investigate the issue.

The Complainant was distressed by the situation and attended her general practitioner and was advised to take sick leave. There followed an exchange of emails between the Complainant and her Manager in relation to addressing the ongoing situation. There was also correspondence with the wife of the Manager who worked in the area of Human Resources and Accounting for the Respondent Company. Ultimately, both parties engaged legal representation and letters were exchanged. The Complainants advisor were looking for CCTV footage and employment records whilst the Respondent Company sought a written apology in relation to the allegations made or in the alternative proceedings would issue for Defamation.

On the 26th April 2018, the Complainant resigned from her employment by letter and stated, inter alia, that she felt that she had no choice but to resign considering the response from her employer about the inappropriate use of CCTV and her invasion of privacy.

In the course of this hearing, two colleagues of the Complainant gave supportive evidence in relation to the playing of the CCTV footage on the work premises. The first colleague, who was also in a relationship with the Complainant, worked as a supervisor for the Respondent Company. In the course of his evidence he alleged the Manager had asked questions about the Complainants private life and his relationship with her. It is further alleged he was informed that his immigration status could be in jeopardy due to his relationship with the Complainant. The second colleague, who was a shop assistant with the Respondent Company, informed the Complainant later that evening about the playing of the CCTV footage in the work premises.

This Complaint was submitted to the Workplace Relations Commission on the 27th April 2018.  

The Complainant continued to look for employment following her resignation and was ultimately accepted into a third level education course on the 21st August 2018.

The Respondent Company accepts the timeline in relation to the Complainants employment and the correspondence referred to above.

It is denied on behalf of the Respondent Company that there was any attempt to invade the Complainants privacy by CCTV footage or enquiries into her personal life and relationships.

It is suggested that the Manager and his wife had left the premises at approximately 13:20 on the 30th March 2018 in order to make a lodgement and accordingly were not on the premises when it is alleged that the Complainant wold have been visible on the various screens on the premises. In that respect the Respondent Company stated that the CCTV cameras (external and on the shop floor) were erected for public health safety and crime prevention and were not used to monitor staff.

The Manager of the Respondent Company accepted he had a meeting with the Complainants colleague and partner following the email sent on the evening of the 30th March 2018 alleging the invasion of the Complainants privacy. It is alleged that this colleague suggested that the Complainant was going to report this matter to An Garda Siochana and alleges sexual harassment and in the circumstances it would be preferable if the Respondent Company gave the Complainant some monies so as to resolve this matter. This allegation was vigorously denied by the Complainants colleague and partner. The Manager denies making any enquiries into the private life of the Complainant or her partner.

The Respondent Company provided various CCTV images dated the 30th March 2018 between 13:35 and 14:12. Further documentation was provided to include employment contracts, extract from the employee handbook, payslips, shift and break records in relation to the Complainant. In particular, I note the extracts that deal with personal harassment policy and procedures.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

The first complaint (CA-00018761-001) is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

Further, Section 7 provides:

7.— (1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 further performance”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate her contract of employment.

On a full assessment of the facts I can find no evidence to suggest that there was a significant breach going to the root of the complainant’s contract of employment. In those circumstances, I must ask myself, was it reasonable in all of the circumstances for the complainant to terminate her contract of employment.

It was accepted that by both parties, up until the alleged events on or about the 30th March 2018, the Complainant had a very good relationship with her employers wherein they would attend social and family events together. Prior to the 30th March 2018 there are no allegations of incidents of a similar nature or any issues of personal harassment or invasion of privacy in relation to the Complainant by the Respondent.

The correspondence between the parties, following the initial email of the 30th March 2018 at 18:53 escalated to an extent that the Complainant tendered her resignation on the 26th April 2018.

There is a significant conflict in evidence between the parties and although, the alleged action by the Complainants manager, if accepted, can be regarded as somewhat prurient in nature, I do not accept that the behaviour was so unreasonable as to justify the Complainant terminating her own employment.

Accordingly, the complaint pursuant to Section 8 of the Unfair Dismissal Act 1977 fails.

In relation to the second complaint (CA-00018761-002), the Complainant alleges she is entitled to pay for the days she was on certified sick leave, namely the 6th, 13th, 20th and 27th April 2018.

In that respect, I am relying upon the Complainants employment of contract dated the 10th March 2008 provided along with the Complainants submissions which differs in relation to the contract of employment provided by the Respondent Company. The relevant paragraph in relation to sick pay provides, inter alia:

“payment during certified sick leave will be in accordance with the JLC Retail Grocery and Allied Trade Joint Labour Committee. In the unlikely event that the employer, at its absolute discretion ever makes a payment outside of statutory provisions it will not be deemed to be indicative of a change of policy and will not entitle the recipient to similar treatment in the future. The sick pay scheme will apply on a calendar year basis that is from 1st January to 31st December.”

Although, the Complainants updated main terms of employment dated November 2013 (unsigned) provide for no contractual sickness/injury payments scheme in addition to state benefit, in the circumstances of this case, I accept that it is matter of contract that the Complainant enjoyed an entitlement to sick pay pursuant to her contract of employment dated the 10th March 2008 and is entitled to be paid in accordance with the provisions of her contact.

Accordingly, the complaint pursuant to Section 6 of the Payment of Wages Act, 1991 is well founded.

I find that the Complaint (CA-00018761-001) is not well founded and therefore fails.

I find that the Complaint (CA-00018761-002) is well founded and the Complainant is entitled to pay for the days she was on certified sick leave at the time of her employment with the Respondent Company.

Constructive Dismissal Payment of Wages