Complainant

Respondent

Anonymised Parties

Beauty Advisor

Beauty product manufacturer

Representatives

Self-represented

Siobhan McCrory Employment Law Consultancy Ltd

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-00020583-001

13/07/2018

This is a complaint of constructive dismissal.

The complainant commenced employment with the respondent as a beauty consultant on 11/6/2011 and was promoted to the position of counter manager in 2012 .

Following her return from maternity leave in September 2017,the respondent failed to pay her the correct rate for a period, was slow to respond to her requests for fewer Sundays and public holidays, more balanced hours, and disregarded her complaint of bullying against a counter manager. The respondent refused to give her leave in March 2018.

The complainant resigned on 11/7/18.

She earned €12.50 an hour, plus 2.5 % sales commission, and worked 15 hours a week.

She submitted her complaint to the WRC on 17/7/18.

The complainant started as a full-time counter manager with the respondent in June 2011 and progressed to the position of counter manager in 2012.

In January 2017 she went on maternity leave. She requested part time work on return to work following her maternity leave.

She advises that she was assured in July and August 2017 prior to her return from maternity leave that due to her childcare requirements

she would only have to work one Sunday a month,

she would be provided with her rota 4 weeks in advance,

days off on public holidays would be shared,

and that she would alternate with one late shift one early shift on the two days on which she worked.

The respondent did not honour these reassurances. The complainant worked 2 -3 Sundays a month, was not given her rota 4 weeks in advance, but only a few days beforehand, causing difficulties for her with childcare every month. For example, she received the October rota in the first week of October. Also, she was purposely rostered for 3-4 days in a row knowing she could not do this. She was scheduled to work on every bank holiday but with little notice.

She was rostered for every late shift for the month of December. She complained to the respondent and they altered it slightly.

The complainant made numerous complaints to HR and the area manager about the above issues. The complainant complained to the HR manager in December that she was being bullied by the counter manager. The HR manager advised her of the option of making a formal complaint. She decided against that option.

She advised the respondent that she couldn’t work on the weekend of St Patrick’s day because of child care needs. Yet the complainant was assigned to work Friday, Saturday and Sunday of that weekend despite the fact that she told the HR manager that 2 colleagues were willing to work for her. She was still refused on the basis that she had had the previous October bank holiday off.

The complainant had a meeting in October and also a meeting in January 2018 with HR about her concerns and she made multiple phone calls. The complainant states that the respondent failed to address her concerns. She maintains that the purpose of assigning her to that particular store was to make it so difficult for that she would have to leave.

The counter manager advised that she was going to take half of her and her colleagues’ sales one day for the purposes of getting commission. The complainant disagreed and reported this to the respondent. The next day the complainant’s sales sheet was nowhere to be found.

In January she applied to take holidays in March and gave 6 weeks’ notice. She was refused the leave. The refusal of leave in March was the last straw for the complainant. She became ill with work related stress on 14/3/18. This extended up until 31/7/17.

After she handed in her notice on 5/7/18, the respondent offered her the option of working in another store.

The complainant was on illness benefit until 31/7/17. She commenced a new job in August 2017, earning €12.50 an hour. She does not receive commission in the new job. She received commission of 2.5% with the respondent.

Despite many conversations and meetings and a request to move to another store, the respondent did nothing to address her concerns. She thought it was unfair on her mentally and financially to be out of work because of the failure of the respondent to deal with her concerns. Nothing had changed in the workplace. They would not give her set hours. They stated that they were dealing with issues but as she was told that in October 2017 she found it hard to believe. Following the submission of her resignation to the General Manager, he asked to meet her, but the complainant believed that they were only offering the meeting as she was leaving the company. She dedicated 7 years to this company and considers that she was treated very badly and pushed out.

The complainant believes that the respondent purposely put her in that difficult position in order to force her to leave.

The respondent manufactures high end skin and beauty products and operates a number of counters in different stores.

The complainant commenced with the respondent as a beauty consultant and progressed to a position of counter manager in 15/12/2012.

The complainant commenced maternity leave on 23/1/2017. Prior to returning from maternity leave on 1/9/2107, the complainant advised the HR manager that she did not wish to return to the full -time position of counter manager. She was offered and accepted the part time position of beauty advisor in another store in which the respondent operated a counter, working 15 hours a week. She changed from a counter manager to a beauty consultant at her own request.

The respondent advises that she was never told that she would work one late and one early shift. The contract submitted to the hearing does not specify this.

In October the complainant complained to the respondent at having been assigned to work the October bank holiday weekend, stating that she had not made child care arrangements. Though given little notice and though the contract to which the complainant had agreed provided for rostering on public holidays, the respondent agreed to her request.

The Christmas rota issued in October 2017. The complainant was assigned to work on 26 December. The complainant advised that she was unhappy with this and with the number of late shifts assigned to her in December. The area manager met the complainant on 25/10/17. She told the counter manager to reduce the number of late shifts assigned to the complainant in December. The complainant raised no other issue concerning her shifts. All staff had to be accommodated so the assignment for 26th December was unchanged, yet the complainant was off on Christmas Eve and New Year’s s Eve and on many days over Christmas.

All staff were invited to attend a meeting on 27/11/17 to air concerns about shifts, public holidays, how the counter was functioning and issues concerning the counter manager. The complainant said nothing at the meeting other than to advise that she would have to leave after an hour. All staff were given opportunity to go to HR or General Manager about their concerns after the meeting.

The complainant rang in sick on 26 and 28 December 2017.

On 10/2/18, the complainant met HR about the assignment for the St. Patrick’s Day weekend. She had been granted holidays on 5 and 6 March. A member of staff was leaving, and the counter manager was scheduled to take leave for the same period, so it wasn’t possible to grant the complainant the Patrick’s day weekend off. She had been given a month’s notice of this. The respondent heard nothing further about the issue.

The complainant submitted a sick certificate on 14/3/18 effective up until 25/4/18. No medical condition was disclosed. The respondent contacted the complainant on 14/4/18 asking to meet her to discuss her health, anticipated return and how they might help her in that endeavour. The complainant wrote back on 11/4/18 to say that she was suffering from work related stress and that she would be in touch with the respondent as soon as her health permitted.

On the 8/6/18 the respondent invited the complainant to meet them so as to identify how they could facilitate her return to work. The complainant had contacted the sore manager to see if opportunities might be available in other stores as she had issues with the counter manager.

The respondent met the complainant on the 14/6/18. The complainant raised concerns about the counter manager. The respondent embarked on an investigation of these complaints with the counter manager and her union representative on 29/6/18. Other meetings were scheduled with other staff. Yet knowing this, the complainant resigned verbally to the HR manager. She told her that they did not want to accept her resignation. She told the respondent that her decision was made. She emailed her resignation to the General Manager on the 5/7/18. On the 9/7/18 the General manager advised that the investigation into her complaint was ongoing, they did not want to accept her resignation and asked her to meet them. She was invited to retract her resignation pending the outcome of the investigation of her complaint as her letter of resignation could be seen as the activation of the grievance procedure. Temporary redeployment was suggested.

The complainant advised the General Manager that she was unwilling to retract her resignation. She declined to meet him.

The complainant was assigned one Sunday in November, none in December,1 in the months January- March 2018.

The complainant never activated the grievance procedure,

The respondent denies that they assigned her to that particular store so as to make things so intolerable for her that she would have to resign. She specified that particular store as a store in which she wished to work

The respondent asks the adjudicator to dismiss the complaint.

I am required to determine of the complainant was constructively dismissed.

Constructive dismissal is defined in s 1. of the 1977 Act, 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 circumstances in which, because of the conduct of the employer, the employee is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

The burden of proof rests with the complainant in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

“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”.

The reasonable test was expressed as

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

The proofs which the complainant must advance to prove her case are that the behaviour of the respondent and of which she complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left her with no option other than resignation

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

The contract which the complainant signed had the sum of €11.50 an hour on it. The complainant was given an undertaking that the salary would be reviewed.

The contract was submitted in evidence. I find that the assignment of the complainant to work weekends and public holidays was encompassed in her contract of employment. I do not find one Sunday a month to be excessive. In relation to the public holidays, the respondent did relieve her of the obligation to work the October 2017 public holiday. I do not find an assignment to work 2 public holidays in a 7-month period to be unreasonable.

I find that the respondent did address the complainant’s concerns about an over- assignment of late shifts and corrected this in December 2017.

I find that the respondent rectified the issue of late notification of rosters in December. I find that the respondent did issue the roster one month in advance for the months February and March.

I find that the respondent offered the complainant the option of making a formal complaint about the counter manager’s behaviour towards the complainant upon being notified of same in December 2017. The complainant declined this option. When the complainant returned to this issue in June, the respondent did undertake an investigation in June 2018 into the complaint of bullying against the counter manager.

The respondent engaged with the complainant at every request. The respondent addressed most of the concerns.

I find that the complainant failed to use the grievance procedure or to submit a formal complaint of bullying. The respondent viewed the letter of resignation as an activation of the grievance procedure, allowing them to investigate the complaint of bullying. The complainant’s other concerns about shifts and rostering were not funnelled through a grievance procedure.

The requirement to use the agreed procedures in cases of constructive dismissal has been identified in McCormack V Dunnes Stores, UD,1421/2008, and in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed in many other decisions. The complainant in resigning on the 5/7/18, midway through an investigation of her complaints, aborted any remedy which the respondent could have provided for her.

I find that the complainant gave the respondent insufficient time to allow the investigation to produce conclusions or to rectify the matter.

The evidence does not support the complainant’s contention that she met one or both tests necessary to sustain a complaint of constructive dismissal. I do not find that the respondent repudiated the contract of employment. I do not accept that the respondent’s behaviour was so intolerable as to merit the complainant’s resignation.

I do not uphold her complaint that she was constructively dismissed

I do not find this complaint to be well founded.

Constructive dismissal. Resignation midway through an investigative procedure.