Complainant

Respondent

Anonymised Parties

A Deli Assistant

A Grocery Shop

Representatives

Martin Moloney M.P. Moloney Solicitors

Ursula Sherlock 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-00020634-001

18/07/2018

The Complainant was employed by the Respondent as a deli assistant from the 7th November 2016 until the 19th January 2018. She was paid €9.55 per hour and she worked 35 to 40 hours per week. She is claiming constructive dismissal.

It was submitted on behalf of the Complainant that she terminated her employment on the 19th January 2018 because of the culmination of a pattern of behaviour and failures on the part of the Respondent.

The Complainant said that she worked full time at the deli counter which was a very busy area. The trolley used for bringing food from the freezer to the deli area had a defective wheel since she started work in November. It was difficult to manoeuvre the trolley and she had to manually lift it to get it into the freezer. She complained to the manager at the time and again to another manager about the broken trolley. However, it was not repaired until November 2017 after she complained to the newly appointed manager.

The Complainant said that she was persistently refused breaks as there was no cover staff provided for the deli. When she took a bathroom break the bell used to call staff was constantly rung by one particular sales assistant and she felt she could not use the bathroom. She said that she was bullied and harassed by this female sales assistant (Ms. A) for example, she would constantly ask her to get change from the cash office which left the deli unattended, she would taste the food the Complainant had prepared and criticise it, get in her way by preparing her own food and this made the Complainant late in preparing food for the deli. Ms A made it clear to her she did not like her. The Complainant made a complaint to her manager about the bullying treatment and about a month later Ms A confronted her, became aggressive and started shouting that she did not bully her. The solution recommended to the complaint by the HR manager was that they should go for coffee and a chat to sort out the issues, but this had not happened before Ms A confronted her. Ms. A then stopped speaking to her for a couple of weeks, but she then reverted to the same behaviour again. The Complainant said that she reported the matter to another manager who told her she would deal with it but Ms. A continued her behaviour.

The Complainant said that an employee (Mr. B) was assigned to the deli and she had great difficulty in getting him to carry out any work and she could not rely on him to prepare the trolley in the freezer so that it was ready for her to take to the deli next morning. If the trolley was not filled she lost a half an hour in the morning doing it. Mr B was constantly looking for cigarette breaks, and she had no choice but to give them to him. She complained him to the manager. Mr. B saw her complaint on the managers desk and told her that if she had a problem with him he should say it to his face. The Complainant said that she was upset about this.

On the 19th of June 2017, the lights in the deli went out and her manager instructed her to continue working and she had to continue cooking food and using sharp knives in a very unsafe environment. The lights were not fixed for a day and a half.

On the 13th June 2017, she attended her doctor because she felt down, and she was prescribed anti-depressants and the doctor sent her to counselling and she went to 9 sessions of counselling starting in October.

On the 8th September 2017, the Complainant called the HR manager about the broken trolley and informed her about the pain in her back. She also put in a request to work shorter hours or a 4-day week. She was referred to the company doctor, but she did not get an appointment until the 13th November 2017. A staff member assigned to help in the deli was constantly taking smoking breaks and leaving her to do all the work and she had to complain to management. However, he continued to do what he liked.

On the 22nd September 2017, the Complainant was exiting the sluice room in the back store when a large box of coffee fell hitting her on the shoulder and knocking her to the floor. She reported the matter to her manager and said that she would write it into the incident book, but the manager said that there was no need as she would be fine and suggesting she could walk it off.

On the 23rd October the Complainant attended her own GP with back pain caused by the broken trolley. She was declared unfit for work for work until the 27th October 2017.   When she returned to work and showed her manager the medical certificate but was refused permission to leave as the shop was short staffed. However, when the HR manager visited the shop and learned about the medical certificate and she sent her home immediately.

A new manager was appointed in October and the trolley was repaired immediately. Between November and December, the Complainant said that there was a high turnover of staff in the shop

A Staff member who helped her in the deli had an accident in November and was out of work and the Complainant said that she had to work 5 days again. Also, during November and December there were 3 armed robberies and while she was not in the shop all the staff were on edge afterwards.

The Complainant felt that there was not enough staff in the shop and that she would be left short staffed in the deli and she decided she did not want to work there anymore.   She decided to resign, and she gave a month’s notice on the 21st December 2017. She worked up until the 19th January 2018. She said that she was asked by HR Manager to stay on longer, but she refused. She accepts that she did not tell her Manager that she was leaving because of the conditions at work she said that she did not want any hard feelings. She accepted that any issues she raised with the HR Manager that she dealt with them and that she sent her copies of the Dignity at Work Policy and the Grievance Procedures.

The Respondent disputed the claim that the Complainant was constructively dismissed. In particular, the Respondent contended that the cessation of the Complainant’s employment does not fall within the definition of “dismissal” as set out in section 1 of the Unfair Dismissals Act 1977 (as amended). The Respondent stated that no dismissal took place but rather the Complainant voluntarily resigned her position.

The Respondent is a retail operator and the Complainant commenced employment as a deli assistant with them on the 7th of November 2016. The Complainant signed a contract of employment on the 15th of November 2016 and she was provided with a copy of the Dignity at Work Policy and the Grievance Procedure Policy.

On the 24th of April 2017, the Complainant telephoned the HR Executive, and said that she was experiencing some difficulties in her working relationship with her direct line manager (the Store Manager). The HR Executive supported her and explained the different policy options available to the Complainant. She recommended to her that the first step to restoring an amicable working relationship would be to arrange an informal meeting with her Store Manager, although that did not preclude her from making a formal complaint later. The HR Executive emailed the Complainant, following the telephone conversation, and confirmed that she would be in touch with her Store Manager the following day to arrange a meeting with all involved, with a view to a prompt and effective resolution for complaints. she also provided the Complainants with a copy of the EAP brochure the Dignity at Work Policy and the Grievance Procedures

The HR Executive met with the Store Manager on the 25th of April 2017. She explained that she had a conversation with the Complainant and the Complainant told her of the difficulties she was experiencing dealing with her. The Store Manager explained that as a newly appointed manager she was anxious to improve standards and that may have been misconstrued by the Complainant and she said she would meet the Complainant to try and resolve the issues. Following the meeting, the HR Executive sent the Store Manager guidance and how to ensure that she got the optimum results from her meeting with the Complainant. On the 1st of May 2017, the component emailed the HR Executive to say that everything was going much better and that she was feeling much better and that she was looking forward to having a meeting with the Store Manager on the 6th of May.

On the 17th of May 2017, the Store Manager met with the Complainant as arranged by the HR Executive. After this meeting the Complainant informed the HR Executive that is had been a very constructive meeting and they had cleared the air and their working relationship was now fine. During that conversation the Complainant made a complaint about one of her colleagues who took too many cigarette breaks and was leaving her to do most of the work. The HR Executive explained that management would deal with her colleague taking excessive breaks. She also made a complaint about another colleague who she said was picking on her. The HR Executive offered to process this complaint under the procedures and told the Complainant that she would appreciate if the Complainant would put the complaint in writing. The Complainant said she was happy to deal with the matter informally herself and that she would meet with her colleague and would contact HR if she needed any assistance. The HR executive said she told the Complainant that she would check with her again and she did so on the 23rd of June 2017. During that conversation the Complainant said that she had no issues now with her the colleague who was critical of her, but her main issue was with the colleague who took excessive breaks and was unreliable.

The Store Manager, who the Complainant complained about, moved to another store on the 12th of June 2017, and a new Store Manager was appointed. There were some concerns about the viability of store and store meetings were held in September and a plan of action was put in place to increase sales and to reinforce the importance of standards. The new Store Manager resigned in early October and a new Store Manager (Mr C) was appointed on the 2nd of October 2017. The Complainant was on sick leave from work from the 23rd of October to the 28th of October 2017, and her medical certificate stated it was due to back pain. On the 31st of October Mr. C met with the Complainant and conducted a back to work interview. The Complainant confirmed at that meeting that she was able to carry out her normal hours and her normal duties and that her doctor did not make any recommendations in relation to her return to work. The Complainant alleged at that meeting that the back pain must be work-related as she did not do strenuous work at home. She confirmed that she had not filed any incident, accident or hazardous report form and did not point to any particular incident as regards her allegations about the back pain. She did say that a trolley needed to be fixed period. However, the trolley has been repaired since early October.

The Complainant was referred to the company doctor and also, she was counselled and how to follow her manual handling training. The Complainant attended the occupational health appointment on the 13th of November 2017. In the report from the OH doctor he said that the Complainants was fully fit to remain in work.

On the 19th of November 2017, the Complainant emailed the HR executive and requested a reduction in her hours from 40 hours per week to 30 hours per week and also to shorten her shifts. She gave no reason for the request. The HR Executive and the Store Manager met with the Complainant on the 30th of November 2017 to discuss her request for a change in hours and the doctors medical report. It was agreed following discussions that the Complainant would now work between 3 to 4 days per week and the Complainants was advised that this arrangement would be reviewed after the New Year in mid-January. She requested that if possible to take Tuesday off and this was agreed to. The Complainant was advised by the HR Executive to bring any queries or concerns she had to her attention. The notes of this meeting together with the medical report were provided to the Complainant by the HR Executive on the 4th of December 2017. On the 19th of December the Complainant submitted a letter of resignation stating that she was resigning with effect from the 19th of January 2018. There is no reason given in the letter for the resignation. The Store Manager met with the Complainant after receiving the resignation. She told him that she was moving to Tallaght to with her partner and the commute to the shop would be too difficult from Tallaght and that she intended setting up another business. The manager asked her stay on, but she declined the offer. The HR Executive also spoke with the Complainant about retracting her resignation, but she was clear in her intent to resign. She made no complaints to either the Store Manager or the HR Executive during these discussions.

Legal Submission

Section 1 of the unfair dismissals act 1977 as amended define dismissal in relation to an employee as follows: (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”.

It was submitted that the Complainant lodged no grievance or complaint before she left the workplace. She alleged in her complaint form that she was constructively dismissed due to the conduct of the employer or others at work. In her complaint form she alleged that she was subject to unfair treatment and routinely worked more hours than she was contracted to work. She also said she was victimised by management and other staff members when she sought to have her concerns addressed. She alleged that her personal health was put at risk because the equipment she was working with was defective and her request to have the broken trolley repaired went unanswered. She alleges that she sustained a significant injury at work which has lasting consequences on her health and therefore, for health and other reasons she had no option but to cease work in January 2018. The Respondent submitted that these allegations are factually and legally incorrect. At no point either before or at the time of her resignation did the Complainant indicate in any manner that the company's actions were such that she could have considered herself to be constructively dismissed. Her letter of resignation indicates the opposite to be true when she stated: “thanks very much for the opportunities for professional and personal development that you have provided me during the last year. I have enjoyed working for the company and appreciate the support provided me during my tenure with the company”. If it was the case that the Complainant had a grievance with the Respondent’s handling of her allegations against her previous Store Manager or any other matter, it was unreasonable for her to consider herself constructively dismissed in the circumstances where no such grievance was lodged, and where she had ready access to the HR Executive and was fully aware of the Respondent’s Grievance and Dignity at Work Policies.

I was referred to the case of Terminal Four Solutions Ltd v Rahman, UD 898 2011, where the Employment Appeals Tribunal considered the burden of proof regarding claims of constructive dismissal stating “However, the burden of proof rests on the Respondent [the employee] to show that she had no choice but to leave her position and the appellant company. The [employee] must show the Tribunal that her resignation was not voluntary and that the conduct of the employers was so unreasonable that she had no option but to resign. Furthermore, it is incumbent on the employee to utilise all internal remedies made available to her unless you can show that said remedies are unfair.”

In Kenouche vs Four Star Pizza UD962, it was stated that “the conduct [of the employer] refer 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.”

In Employee v Employer, UD 200/2012 the Tribunal noted that: "Having heard all the evidence in this case the Tribunal finds that the conduct of the employer was less than exemplary. However, the burden of proof in a constructive dismissal claim presents a Complainant with a high bar to overcome. The Tribunal finds that the claimant did not reach the bar".

In Employee v Employer UD1840/2011, the EAT stated "The burden of proof rests with the claimant to demonstrate that her decision to resign her position with the respondent company was reasonable in all the circumstances. In particular the claimant must show that the resignation was not financially and that the Respondent company acted in such a way that no reasonable person could I would continue working for the respondent."

It was submitted that in accordance with established principles adopted by the WRC, the Labour Court, the EAT and the Courts there exist a burden on the employee to demonstrate that the employer had acted in such a manner so as to breach a fundamental term of the employment contract, or the employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign. It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is a Respondents position that neither criterion has been met.

in relation to the contractual test, the Respondent submitted that is operate within the terms of the contract of employment between the parties and no contractual violation occurred. When the Complainant asked for a change in working hours in November 2017, the Respondent responded positively and agreed changes to her hours and gave a commitment to review these changes at a meeting in January. The Complainant resigned less than 3 weeks after this meeting to arrange the change her working hours. The Respondent referred me to the contractual test for constructive dismissal as set out in Conway v Ulster Bank UD474 /1981. The Respondent did not violate any term of the contract and their actions were in no manner “a repudiation of the contract of employment and did not demonstrate that the Respondent no longer intended to be bound by the contract.” No change in the contract to make it “so radically different from what was before.” In light of this it was submitted that the termination of the employment fails on a contractual test to be a constructive dismissal.

in respect of the reasonableness test it is the Respondents position that there exist two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures. I was referred to the case of McCormack vs Dunnes Stores UD1421 2008 where the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted

reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

It was submitted that it is the Respondent’s position that it acted reasonably and fairly at all times in accordance with its policies, best practice and appropriate conduct.The Complainants grievances were dealt by the Respondent and the Complainant herself said that she was satisfied with the way her grievance with her manager was handled. In relation to her complaint about a work colleague, the Complainant choose to deal with this informally. The Complainant was provided with a copy of the Dignity at Work Policy and the Grievance Procedure and at no time during the meetings are subsequent communications with the HR Executive she did not say that any of the complaints were not dealt with satisfactorily.

In relation to her complaints about her work hours, there is no evidence that the Respondent breached the contractual agreed hours or that the hours she was required to work where in breach of the Organisation of Working Time Act 1977. The Complainant requested a reduction in hours and although the Respondent was under no obligation to facilitate the request, they acted as a reasonable employer and facilitated the request to reduce her hours as much as possible.

The Complainant alleged that she suffered a significant injury at work and this was one of the reasons why she resigned. However, the Complainants own medical evidence does not support her assertion that she suffered an injury at work and the Respondent’s Occupational Physician found the Complainant was fully fit, was not suffering from any impairment, and did not require an accommodation to work safely as long as she adhered to manual handling standards. The Complainant was fully trained in manual handling.

For the Complainant to justify a claim of constructive dismissal, she would need to demonstrate that the Respondents conduct was so unreasonable as to make the continuation of the employment with her employer intolerable. It should be noted that the Complainant offered and worked out a month's notice of resignation.

The Respondent submits that the Complainant resigned from her employment without exhausting the internal mechanisms available to her. The burden of proof lies with her to demonstrate that she acted reasonably and exhausted all internal procedures, or to demonstrate that the actions of the employer were so unreasonable that she was left with no option but to resign immediately.

It was submitted that it has long been held that employees have an obligation to utilise and exhaust internal grievance procedures before taking such a drastic step as resign their employment as per Conway vs Ulster Bank. The Complainant has not acted reasonably in asserting that she was constructively dismissed as she has not previously “substantially used to lies the grievance procedure to attempt to remedy [her] complaints” in respect of her allegations. In light of this, the Complainant failure to see this process through by working through any issues she had with the company were also unreasonable. It should be noted that once the Complainant handed in her notice the Store Manager and the HR executive met with her and ask her to stay with the company. The Complainant said she was resigning because she was moving to Tallaght and was considering setting up her own business.

It is submitted therefore that the resignation cannot be attributed to reasons mentioned in the Complainant’s complaint form as she made no attempt to inform the Respondent of these complaints before she resigned. For these reasons, it was submitted that the Complainant has failed to establish that she was constructively dismissed.

The matter I must consider is whether the Complainant was constructively dismissed as she resigned from the employment. Section 1(b) of the Unfair Dismissals Act 1977 defines dismissal as:

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

(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,

In relation to a breach of the contract of employment the judgment in Berber v Dunnes Stores Limited [2009] IESC 10 is the authority.   The Supreme Court held that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is an objective one.   Finnegan J. held:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at.”

The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. The ‘contract test’ is set out 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.”

The reasonableness test assesses the conduct of the employer and whether it “…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 Labour Court went on to say: “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 definition 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.

According to the Supreme Court in Berber cited above, “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly to determine if it is such that the employee cannot be expected to put up with it.”

It places the burden of proof on the employee to show that his resignation was justified in all the circumstances. The Complainant put forward a number of matters outlined above in her evidence which occurred in 2017 to support her claim of unacceptable behavior by the Respondent.

Having reviewed the evidence in relation to these matters, I am satisfied that any complaints raised by the Complainant were dealt with in an appropriate manner by the HR Executive. The Complainant did not make any formal complaints under the grievance procedures nor did she raise any further concerns about being left short staffed in the deli before she made the decision to resign. I note that she was also accommodated with a shorter working week when she requested same a few weeks before she resigned.

I am satisfied that there is no basis for the Complainant’s claim that the conduct of the employer entitled her to resign. In applying the jurisprudence of the Labour Court in the case of Paris Bakery cited above the Labour Court in considering conduct said: “be regarded as so unreasonable as to justify the employee in leaving there and then.” I note from the evidence that the Complainant took the decision to resign for personal reasons which were unrelated to her working conditions or the conduct of the employer. I further note that the complainant did not leave there and then but gave a month’s notice on the 21st December 2017 and worked until the 19th January 2018.    

I cannot accept that the Respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Paris Bakery cited above

In McCormack v Dunnes Stores cited above I note that the EAT held that the employee had to demonstrate that he “had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.”

The Complainant did not seek to meet the Respondent before resigning to air any further grievances before confirming her resignation and thereby failed to exhaust the procedures and give the Respondent an opportunity to resolve issues between them.

For all the above reasons, I find that the Complainant has failed to meet the threshold to establish a complaint of constructive dismissal in accordance with Section 1(b) of the UD Act and as set out in the caselaw cited above. Therefore, the complaint fails.

I find that the Complainant has failed to establish that she was constructively dismissed contrary to the Unfair Dismissals Act 1977.

Unfair dismissals Act 1977, Constructive Dismissal.