Complainant

Respondent

Anonymised Parties

A Customer Services Administrator

A Parking Services Company

Representatives

Lars Asmussen, BL

Liam Dunne, Byrne Wallace 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-00020852-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00020852-003

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00020852-004

30/07/2018

The complainant commenced employment as an agency worker with an employment agency on October 10th 2010. On the same day, she was assigned by the agency to work as a customer services administrator with the respondent in this complaint, a parking services company.   From the start of her employment and, for several years, the complainant said that she worked around 30 hours each week; however, towards the end of her service, she claims that her hours were significantly reduced. At the termination of her employment, her hourly rate was €11.80. At the opening of the hearing, Mr Asmussen said that the complainant earned an average of €220 per week.

The complainant raised several grievances about how she was treated by the respondent. These matters were referred to the WRC for mediation; however, at a mediation meeting on May 22nd 2018, the complainant resigned.

This is a complaint of constructive dismissal against the respondent, the “hirer” of the complainant in this case. In circumstances of constructive dismissal, the burden of proof is on a complainant in the first instance, to show that the conduct of her employer was such that she had no alternative but to resign. For this reason, I must consider the evidence of the complainant first.

Chronology of Events Leading to the Complainant’s Dismissal

December 24th 2016

On Christmas eve 2016, the complainant started her shift at 6.00am and was due to finish at 2.00pm.   A colleague from the employment agency started her shift at 8.00am and was due to finish at 4.00pm. The complainant was wearing headphones while she was working and around 12.00 midday, she noticed that her colleague had left. She sent e-mails to her supervisors, asking if she was to stay until 4.00pm to cover for her colleague. She got no reply, so she finished at 2.00pm.

When she returned to work in the new year, the complainant was informed that, on December 24th, a manager, “AB,” had phoned the office and informed the colleague who answered the phone and who had started work at 8.00am that they could both finish at 12.00. The colleague didn’t inform the complainant, and simply left work at 12.00.   The complainant was shocked at this treatment and upset when the manager didn’t do anything about it.   In her evidence, she said that she didn’t want to work with this colleague any longer.

March 2017

In March 2017, when AB was working on rosters, he commented, “now that we are fully staffed, we can get rid of (the complainant).” The complainant said that four people were in the office when this statement was made. In her evidence, the complainant said that AB phoned her several times and accepted that he made this statement, but he claimed that it was a joke and he said that he shouldn’t have said it. When she was back in work, the complainant said that AB apologised to her for what he said. The complainant said that she thought AB’s comment was serious, even though he said, “we still need you to work.”

The complainant was asked about this matter in cross-examination. Mr Dunne put it to her that she was very friendly with AB that she would have known that he was joking when he made this statement. Mr Dunne referred to the WhatsApp and text messages between the complainant and AB which were submitted in evidence and which show that they were on very good terms. In response, the complainant said that the text messages were private, whereas, this statement was made in front of others.

In October 2017, the complainant raised this incident among a number of grievances about how she was treated by the respondent. When she was asked why she brought this issue up in October 2017, when AB had apologised in March 2017, the complainant said that in October, AB was doing the roster and she wasn’t getting the shifts she wanted.

August 2017

The complainant said that a permanent part-time job was advertised that she would have been suitable for. She claims that she wasn’t informed about this vacancy and she wasn’t invited to apply.   Following the advertisement, the respondent hired two new permanent part-time people. The complainant discovered that these two new employees were paid more than she was and that they were entitled to an end-of-year bonus. When the new hires joined, the complainant said that hours that were previously available to her during the week were no longer available.

In cross-examination, Mr Dunne asked the complainant how she didn’t see the ad for these jobs.   She replied that she simply didn’t notice it. She said that the company never advertised a permanent part-time job before and she never enquired about such a role. She agreed that in 2014, having been interviewed for a full-time job, she was offered the role, but she turned it down. She said that the reason was because the wages were less than what she earned as an agency worker. The complainant agreed that she didn’t apply for a permanent part-time position that was advertised in January 2018.

October 2017

Following the recruitment of the two new employees, the complainant said that her hours were changed without consultation with her. In an e-mail to another manager, “AC,” that was submitted in evidence, she said that she was recruited to work mostly weekends and nights but that she worked full-time when it suited the respondent. Now she found that her shifts were being given to the new people.   She was also being rostered for times when she claims the respondent knew she wasn’t available, on Tuesdays and Thursdays after 5.00pm, when she went to college. The complainant said that her hours were being reduced and she couldn’t survive on €100 per week and she started to think she would have to leave. In an e-mail to AC on October 20th 2017, she said that she was considering making a complaint to the WRC.

AC replied to this e-mail on October 25th and sent the complainant a copy of the respondent’s grievance procedure. A meeting was arranged for October 26th at which the complainant said that she would prefer to try to resolve her issues informally in discussions with AC.

When she was asked by Mr Dunne about her claim of harassment, the complainant said that the harassment refers to how she felt as she set out in her e-mail of October 20th. She said that, although her health was becoming affected by what was happening at work, she didn’t go to her doctor.

November 2017

In November, the complainant sent AB a text message five hours before she was due to start her shift, to let him know that she was sick and wouldn’t be in. AC contacted the employment agency and complained about this and said that it was the company’s policy that staff had to telephone someone if they were going to be absent. The complainant said that she thinks this happened because she informed AB that she had contacted the WRC.

December 2017

In her evidence, the complainant said that she couldn’t attend her college course due to the change in her roster as a result of the recruitment of two new employees and that she “had to fight to retain her shifts.” The complainant said that her normal shift was Friday, Saturday, Sunday and Monday.   First, she said that Mondays were taken away, then Sundays, without any consultation. She said that when she mentioned that she was thinking about making a complaint to the WRC, things got worse and she said that AC told her that when rostering staff, he had to give preference to permanent employees.

At the hearing, the complainant said that she sent multiple e mails to the mangers at the respondent company and to a new supervisor, “ND,” about the reduction in her hours. She said that she got no response. She said that she had a meeting in early December at which she explained how her hours had been impacted. A letter was included in the complainant’s book of papers dated December 8th 2017. This is from AC in response to the complainant’s e-mail of November 27th 2017, in which she alleged that she was being discriminated against and treated unfairly. In his response, AC addressed the issues raised by the complainant and explained to her that,

“The nature of our contract with (the employment agency) is that the hours required to be covered will be varied and go up and down according to requirements. As such we cannot guarantee minimum hours or particular days for (agency) staff but do try and accommodate people’s availability where possible.”

AC enclosed a copy of the respondent’s grievance procedure and the bullying and harassment policies and advised the complainant that she may take the matter further using these procedures or by contacting the relevant person in the employment agency.   At the hearing, the complainant said that this was an unsatisfactory end to the grievance. However, she said that she didn’t submit a formal grievance because she “knew it wouldn’t go anywhere.”

January 2018

On January 2nd 2018, AC sent the complainant an e-mail and invited her to apply for a new permanent part-time role. The complainant was on holidays at the time, and she replied to AC and informed him that she was “not in a position to apply.” In her e-mail she said,

“I was not offered this opportunity last August when (the respondent) first hired permanently on a part-time contract. The massive reduction in my working hours put me under huge financial stress so much that out of desperation, I approached (the employment agency) for another job.”

Concluding her e-mail, the complainant said that she was declining the offer and that she was going to lodge a complaint with the WRC because she was “not treated in a fair manner compared to other newer staff members.”

The complainant agreed with Mr Dunne when he asked her about taking six weeks off between December 11th 2017 until January 26th 2018. In December 2017, the complainant said that the respondent did not agree to her taking this much time off, but the agency approved her leave.

March 10th 2018

The complainant said that she arrived at work at 2.00pm and found that the computer at her usual work station wasn’t working. She tried to log on to other computers, but without success. Eventually, when one of her colleagues finished her shift, she logged on to her computer. In response to cross-examining, the complainant said that she needed to have access to all the computers in the office so that she could work from any desk.   She said that she didn’t have time to check if she had access, because she needed access to six or seven different applications and it would have taken 20 minutes to check the access to each one. The complainant said that her point is that she had been saying for years that she hadn’t got access to all the computers and she said that is evidence of unfair treatment. Around this time, the complainant said that she began to be assigned to do entry-level work.

March 14th 2018

In an e-mail from a supervisor, the complainant was asked to explain why certain tasks were not completed during her shift the previous Saturday. The complainant said that her mailbox was full and that she sent an e-mail to ask for this to be resolved so that she could get on with her tasks. She objected to the tone of the e-mail from her supervisor and, in her evidence, she described it as harassment. In cross-examination, the complainant said that “she could have talked to me and asked me why I hadn’t completed certain tasks.” She said also that this supervisor rostered her for “erratic shifts.”

May 2018 - Payment of Shortfall in Wages

A payslip was submitted in evidence that shows that on May 30th 2018, the complainant received her wages plus a sum of €523 in respect of the shortfall in her wages arsing from the difference in her pay compared to the newly-recruited permanent part-time employees. The proper amount due was €579.45. At the hearing of this complaint, the respondent accepted that this was an error.     They said that the employment agency sent an invoice to them for the incorrect amount and that the further shortfall of €56.45 would be paid to the complainant.

Conclusion of Direct Evidence

It is the complainant’s case that her hours were reduced when the respondent recruited permanent part-time employees. Having worked the same shifts for years, she said that her shifts were given to someone else.

In 39 pages of WhatsApp and text messages submitted by the respondent, there are various examples of the complainant asking for swaps for her shifts, and of her being asked to work certain shifts. In many cases, she refused to work the extra shifts. When she looked for time off, Mr Dunne pointed out that the messages show that AB tried to accommodate her. In response, the complainant said that things changed when she submitted her complaint to the WRC.

The complainant maintains that, in order to resolve her grievances, she followed the respondent’s grievance procedure, but that her concerns were not addressed. She claims that her situation got worse and that her shifts were reduced to two days a week, without any consistency.   She claims that matters deteriorated even further when she informed the respondent that she intended making a complaint to the WRC. She claims that this was penalisation for having made a complaint.

Throughout her tenure with the respondent, the complainant said that she didn’t get her proper breaks.   Generally, she started work when the permanent employees were leaving at 6.00pm and on most shifts, she had no chance to take a break due to the shortage of staff to cover for her.   She said that she claimed for the hours that she worked when she should have been on a break.

At the end of her direct evidence, the complainant said that when she arrived to work at weekends, her e-mail inbox was full because she was set up to deal with all the appeals from people disputing their parking penalties. She said that her supervisor, NC, used this as a form of harassment.

It became apparent at the hearing that the complainant did not use the respondent’s grievance procedure to attempt to get a satisfactory resolution to her complaints regarding her roster, her relationship with her colleague or her difficulties taking breaks.   When she was asked about this at the hearing, she said that she didn’t think about using the grievance procedure.   She said that she got a job outside and she just wanted to get on with her shifts. She said that she spoke to AC and that in her opinion, he never showed any interest in dealing with things more formally or at a senior level.   She said that he told her that there was nothing he could do and that she would have to raise her grievances with “HQ.” She said that she hoped to go to mediation at the WRC.

In her submission, the complainant said that the respondent placed the complainant in vulnerable situations by rostering her alongside colleagues against whom she raised a complaint of bullying. She claims that she had to take time off so that she would not have to work with these people. Concluding her submission, the complainant said that all of this had a negative effect on her health and she became anxious about going to work. She said that she resigned on June 6th 2018 and she claims that her resignation amounts to constructive dismissal.

The complainant said that, when she submitted her complaint to the WRC she said that she wasn’t interested in mediation, but she was asked by the mediation service to give it a try. She said that it wasn’t successful and she told the mediator that she was resigning.   She said that she felt that “there was no way things were going to get better.”

Cross-Examining

In his cross-examination of the complainant, Mr Dunne showed her copies of a WhatsApp log of communications between her and AB from March to November 2017. Mr Dunne referred to a message dated June 13th 2017 in which AB asked the complainant if she was available for work over the next two to three weeks, as there were day shifts available.   The complainant responded, “not sure abt day shifts tbh. The hours r too irregular for me to commit (sic).”   When Mr Dunne asked her why she refused these day shifts, the complainant said that she had another job.

A series of messages in August 2017 show that the complainant said that she was thinking of quitting and that she had been dealing with a lot of issues, including a death in her family. In response to Mr Dunne, the complainant said that she wasn’t thinking of leaving, and that she was just upset.

Text messages between the complainant and AB between January 2016 and November 2017 were also produced by the respondent’s side. On May 2nd 2017, AB asked the complainant if she was available for Monday to Friday shifts during the weeks commencing May 14th and 21st. She replied, “…sorry but really can’t…am back in college then.”

In response to Mr Dunne, the complainant said that, apart from her work with the respondent, in April 2017, she started a Monday to Friday job for another company. She said that the respondent was aware of this.   She finished in that job in August 2017. She went for an interview for another new job at the end of October 2017 and she started in that job in November. This is around the same time that the complainant raised an issue about the reduction in her hours.

The complainant said that in her new job, she worked Monday to Friday from 8.30am until 5.00pm, and she was in college two nights a week on Tuesdays and Thursdays and on one Saturday a month. Mr Dunne put it to the complainant that the reason her hours were reduced was because she was unavailable for work with the respondent, because she had commitments for more than 50 hours a week. The complainant agreed with Mr Dunne when he said that she did not inform the respondent that she was only available for work at weekends. She agreed with Mr Dunne, that on two weekends in the winter of 2018, she swapped her weekend shifts with colleagues.   She also declined shifts, but the complainant said that she couldn’t recall refusing shifts that were offered.   In February 2018, she said that she couldn’t accept shifts because she had the flu.

Mr Dunne said that, based on an analysis of the complainant’s hours, her shifts were reduced from 4.1 shifts to 3.7 shifts between 2017 and 2018. Mr Dunne suggested to the complainant that she had no issues with the hours offered to her until the recruitment of two new permanent part-time staff in August 2017.

At mediation at the WRC, the complainant said that she was offered a permanent job on a full-time or part-time basis. She said that she looked for answers about why she was being treated unfairly, but that she felt that the company wasn’t interested in dealing with her complaints.  

The complainant agreed that she received a copy of the grievance procedure in 2015 when she had an issue with a full-time colleague. In 2018 time however, she decided not to utilise the procedure. She said that following the incident on Christmas eve in 2016, she felt that the managers would not deal with her complaints.   She said that this colleague should have been reported to the employment agency for leaving work early without informing her that they were permitted to leave.

Summary of the Complainant’s Case

Mr Asmussen summarised the complainant’s position that she had to leave her job and that she was unfairly dismissed on the following grounds:

1. When two new permanent employees were recruited, the complainant was given less hours. Mr Asmussen said that the respondent has stated openly that permanent, direct employees are guaranteed work and that agency employees are not guaranteed work;

2. Mr Asmussen said that the complainant was not notified that the company was advertising for permanent part-time staff;

3. When two permanent, part-time employees were recruited, they were paid €11.80 per hour, whereas the complainant was paid €11.50 per hour. On this basis, Mr Asumssen argued that the complainant is entitled to a decision that she was under-paid;

4. While she was employed by the respondent, the complainant did not get an opportunity to take proper breaks.

Case Law

Mr Asmussen submitted the following legal precedents in support of the complainant’s claim that she was constructively dismissed:

An Employer v A Worker, (Mr O). (Number 2), EED 0410: In this case, the Labour Court discussed the two tests necessary to demonstrate that a claim of constructive dismissal can stand up.

Kennedy v Foxfield Inns Limited, [1995] ELR 216: In this case, at the former Employment Appeals Tribunal, it was found that the type of conduct complained of, coupled with the status of the perpetrator, is relevant in deciding if a decision to resign was reasonable.

Richardson v Avant Shipping, UD 145/07: In this case, it was found that where a manager verbally abused an employee and the manager’s conduct was not investigated, the complainant’s decision to leave amounted to constructive dismissal.

Allen V Independent Newspapers (Ireland) Limited, [2002] ELR 84: Here, it was held that a constructive dismissal stands up where an employee is subjected to inappropriate treatment about which a complaint is made, when the complaint is not dealt with adequately or at all.

Monaghan v Sherry Brothers, [2003] ELR 294: In this case, it was found that the failure of an employer to take action to deal with bullying behaviour may justify the victim of the bullying in their decision to resign.

On behalf of the respondent, Mr Dunne presented a comprehensive submission at the hearing of this complaint. As this is a complaint of constructive dismissal, and the burden of proof sits with the complainant to show that her decision to resign was not unreasonable, I do not intend to re-produce every aspect of the respondent’s defence.   The following is a brief summary of their position.

The Nature of the Complainant’s Role

The respondent engaged the services of the complainant through the employment agency to provide cover for unplanned absences, annual leave and evening and weekend work. If one of the respondent’s employees were absent due to sickness or holidays, the need for agency workers increased to cover the missing full-time employees. However, when the respondent’s cohort of staff were all available, the need for agency workers was reduced. It is the respondent’s case that fluctuations in the hours worked by the agency employees was an intrinsic element of the contractual element between them and the agency.

The Complainant’s Hours of Work

The complainant alleges that she had an agreement to work for the respondent for 30 hours per week, generally at weekends and that this was reduced to 15 hours a week from August 2017 due to the recruitment of two new part-time employees. The respondent refutes that there was any such agreement with the complainant. The respondent’s position is that its contractual terms with permanent employees provide for a minimum number of hours and this impinged on the shifts that were available for agency staff. In 2015, with the objective of reducing labour costs, the respondent decided to not to roster agency staff to cover all the absences of its permanent employees.  

From an analysis carried out by the respondent, it is apparent that the complainant’s hours of work were reduced by around seven hours a week between 2016 and 2017 or from 4.1 shifts to 3.7 shifts. The respondent said that this occurred because more staff were directly employed and this had an effect on the number of shifts available to be covered by agency workers. The respondent’s submission notes that its managers tried to accommodate the complainant’s availability and her desire for specific shifts. The reduction in hours was addressed with the complainant by the respondent’s shared services manager at a meeting on October 26th 2017 and on March 14th 2018.

In 2014, the complainant was offered a full-time, permanent position by the respondent, but she declined this offer. When she was invited to apply for a permanent part-time role in January 2018, she also declined. This offer was repeated at mediation meeting at the WRC on May 22nd 2018 but again, was not taken up.

In addition to her part-time job with the respondent, the complainant took up a full-time job with another employer in April 2017. The respondent was aware of this.

Following the hearing, the respondent provided a schedule of e mails and messages between the complainant and the respondent. This schedule notes that during 2017, on the following dates, the complainant was offered shifts, but declined to work them: April 23rd and 30th, May 7th, 21st and 28th, June 4th and 25th, October 22nd and November 12th. The schedule also notes a number of days that the complainant asked to not work the shifts for which she was rostered and several shifts that she did not work because she was sick. On February 5th 2018, the complainant asked not to be rostered on Sundays. On March 10th, she sent an e-mail saying that she no longer wanted to be rostered alongside her colleague from the agency. She asked to be excused from a shift on Sunday, March 11th. On March 27th 2018, she notified the respondent that she was no longer available for day shifts.

Two new part-time employees were recruited by the respondent and started work on August 27th 2017. The complainant was on annual leave until September 10th. From then until October 22nd 2017, the complainant was offered an average of 4.16 shifts each week, which is the same number of shifts she was offered between January and September that year.   In October 2017, the complainant said that she started looking for a new job; however, the hours she was offered by the respondent were no less than the hours offered before the new part-time employees were recruited. The respondent’s position is that the complainant’s hours reduced after she commenced her new Monday to Friday job in November 2017. The schedule submitted by the respondent after the hearing shows that the complainant refused shifts she was offered, asked to be relieved of shifts that she was rostered for and was unavailable on a number of occasions due to illness. In addition, the complainant was on holidays from mid-December 2017 until the end of January 2018.

The respondent’s submission sent following the hearing of this complaint shows that, following six weeks’ holidays, the complainant was rostered for work for three nights from Friday, January 26th. She asked if she could have these shifts off, but there was no one available to cover, so she worked the shifts. She also looked for the weekend off commencing on Friday, February 2nd, but ended up working these shifts also. The complainant did not attend work for the following two weekends because she was sick with the flu.

The respondent’s submission notes that the complainant did not seek to resolve her grievances by using the company’s grievance procedure. Rejecting this option, in an e-mail of March 14th 2018 to AC, she said,

“I tried to resolve things informally due to the length of time I have spent in the company. Now this is being held against me for supposedly not going through (the agency) and reporting it. Yet, when issues arose, especially involving (AB), you were happy to resolve it in house and did not push to have it logged with (the agency.”

The complainant worked her last shift on May 19th 2018. A mediation meeting took place at the WRC on May 22nd, and at this meeting, the complainant notified the respondent of her intention to resign.   She did not work the shifts for which she was rostered the following week.

It is the respondent’s case that the complainant was not entitled to terminate her employment without notice and, quoting from page 397 of “Redmond on Dismissal Law” by Dr Desmond Ryan, (published by Bloomsbury Professional in 2017), their submission notes that “there was no significant breach going to the root of the contract, or which showed that (the employer) no longer intended to be bound by one or more of its essential terms.”

Constructive Dismissal

The definition of dismissal at section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how her grievance was addressed, was it reasonable for her, or was she entitled to terminate her employment?

Examination of the Evidence

I have given serious consideration to the evidence submitted by the complainant at the hearing on December 12th 2018. She has raised issues about an incident on December 24th 2016, when her colleague didn’t tell her that they had permission to leave work early and an incident in March 2017 when AB joked about getting rid of her.   While the complainant’s submission suggests that these events were at the beginning of a continuum of grievances, I find this difficult to accept, because the respondent’s managers dealt with both incidents and they were not repeated. In the case of the colleague on December 24th, the complainant wanted her conduct to be reported to the employment agency, and she was unhappy when the managers didn’t agree. In the second incident, it is clear to me that the comment made by AB was a joke, and when he was informed that the complainant was offended, he apologised and made it clear to her that they wanted her to continue working with them. This is also evident from the fact that in January 2018, the complainant was invited to apply for a permanent job. When she was asked by counsel for the respondent why she raised this issue again in October 2017, she said that it was because she wasn’t getting the shifts she wanted. It is clear to me from the evidence, that the issues are not related.

In August 2017, the respondent posted an advertisement for two new permanent part-time jobs. I accept the complainant’s evidence that she wasn’t invited to apply for these jobs. When they joined the company, the complainant said that she was surprised to discover that part-time staff had been recruited. Acknowledging this grievance, in January 2018, one of the respondent’s managers sent the complainant an e-mail while she was on holidays, and invited her to apply for a permanent part-time job.

In November 2017, AC contacted the employment agency when the complainant sent a text message to AB five hours before the start of her shift, to inform him that she wouldn’t be in.   AC reiterated the respondent’s policy that staff who will be absent must phone someone rather than sending a text message. The complainant said she was “gobsmacked” about this. At the hearing, she said that she felt that she was reported because she informed the respondent that she had been in touch with the WRC. It is my view that the reason AC contacted the agency is because AB did not pick up the text message on time and, as a result, there was no arrangement in place to cover the complainant’s shift.

The complainant made allegations about the conduct of the respondent around March 2018, when she said that she couldn’t access certain applications on the computer that was available to her. She also suggested that she was given certain low-level tasks that were inappropriate, given her experience. I find that these are operational matters and they do not show that the complainant was singled out for unfair treatment or that they indicate any form of harassment for making a complaint to the WRC.

Having examined the evidence, it seems to me that the complainant left her job when two new permanent part-time employees were recruited by the respondent in August 2017 and the effect of this was that some of the shifts that she wanted to work and that were suitable for her, were no longer available. In April 2017, in addition to her job with the respondent, the complainant started another full-time, day job, from Monday to Friday. This obviously make her unavailable for work with the respondent during weekdays.   She also had college commitments two evenings a week and on one Saturday a month, so this also reduced her availability. She left her day job in August 2017, but started a new one in November.   Therefore, by the time the two new part-time employees were in place, the complainant continued to have restrictions on the times that she could work for the respondent.

On November 27th 2017, the complainant sent AC an e-mail in response to the text message / telephone issue and she alleged that she was being singled out for unfair treatment and discrimination on the ground of her race. On December 8th, AC replied to this letter and he referred to their meeting of October 26th at which they discussed the complainant’s concerns about unfair treatment. In this letter, AC described the respondent’s commitment to agency workers:

“The nature of our contract with (the employment agency) is that the hours required to be covered will be varied and go up and down according to requirements. As such we cannot guarantee minimum hours or particular days for (agency) staff but do try and accommodate people’s availability where possible.”

At the end of his letter, AC invited the complainant to invoke the grievance procedure:

“I have also enclosed the company Grievance and Bullying and Harassment policies again for you to review. Should you feel my answers have not been satisfactory or wish to proceed through a formal Grievance / B&H process through (the respondent) or (the agency) then please don’t hesitate to contact (name of manager in the employment agency) or please escalate your concerns in writing to (name of human resources manager in the respondent company).”

The complainant did not take this recommended course of action.

The complainant has put forward a series of unrelated matters that occurred from December 2016 to early 2018 and has attempted to make these into a case that her employer mistreated her to a point where she had no alternative but to leave. I do not accept this contention. It is my view that the complainant was well-like and valued as a reliable contractor and, even up to the point of her resignation, the respondent was open to offering her a permanent position as a direct employee. From the evidence of the complainant, it is apparent that the availability of the two new part-time workers impacted on the range of shifts that she was rostered for, and it is my view that this is the core of her complaint.

In an e-mail of 11th March 2018, the complainant said,

“I used to work Fri-Mon nights and these shifts have been slowly taken away from me. I have never said I could not work day shifts yet I was no longer given day shifts since late last year – all day shifts went to (another named person) before he left and new (respondent’s) part-timers. Yet, I did not complain. Now I am taken off Friday nights and off weekend night shifts.

“I wish to highlight that as agency staff we have the same rights as any (respondent) employees. We are entitled to be treated fairly and with dignity at work.   If there are proposed changes to our working conditions / hours, we must be informed in advance. These are obviously not decisions which are taken overnight. For the past 3 years I have been on the same night shifts and my life pattern has been set to suit this job and the working hours. Without informing me of any changes, I am suddenly moved to day shifts which inconvenience me greatly. I am not happy that due to lack of communication from management about these changes, everyone else is making assumptions that ‘something happened’ resulting in this.

“I do not understand why (the respondent) is making it so difficult for people to continue working here. I see all these actions as acts of constructive dismissal against me.”

The Reasonableness of the Employee’s Decision to Resign

The issue to consider is if the conduct of the employer in this case was such that it was reasonable for the complainant to resign and to claim that she was constructively dismissed. Many years of case law on constructive dismissal point to the requirement for a complainant to show that the conduct of the employer must fail at least one of two tests, the contract test and the reasonableness test.

More than 40 years ago, in the English case of Western Excavating (ECC) Limited v Sharp [1978] (IRLR 332), Lord Denning concluded;

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance.”

The contractual relationship between the complainant and the respondent was “filtered” through the agency that was her direct employer. Nevertheless, she was entitled to be treated by the respondent with dignity and fairness in respect of all matters, including fairness in the allocation of shifts. The complainant had various commitments related to other employment and a college course that impacted on her availability for work with the respondent between April and August 2017 and from November 2017 until she resigned in May 2018. I do not agree with the complainant’s contention that her shifts were significantly reduced because of the recruitment of two new employees and I find that this reduction occurred for the most part, because she was unavailable for a variety of reasons.   In respect of the allocation of shifts, I am satisfied that there was no contractual agreement, verbal or written, for the complainant to be allocated specific shifts, and, for this reason, there was no breach of her contract such that the complainant was entitled to discharge herself from her job.

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh stated:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

Having considered all the evidence, taken objectively, I find that the issues raised by the complainant between December 2016 and May 2018 do not show that she was treated unfairly. The respondent’s managers were available to her at all times and the correspondence in the form of e-mails, WhatsApp messages and letters demonstrate their respect and even warmth towards her when she was employed by them. I find no evidence that the respondent acted unreasonably in relation to the complainant in the way they attempted to resolve the issues that she raised with them.

Failure to Use the Grievance Procedure

An employee who claims to have been constructively dismissed must show that they made efforts to resolve the concerns that give rise to their resignation by using the internal grievance procedures. The complainant said that because of her length of service, she wanted to resolve her complaints informally; however, this does not make sense when considered in light of her decision to refer a complaint to the WRC.

I must be guided by the authority of the Employment Appeals Tribunal and the Labour Court in respect of this matter. The findings of the cases presented by the respondent, of Jabczuga v Ryanair Limited and Conway v Ulster Bank, demonstrate that where procedures exist, they must be followed and, failure to exhaust the procedures means that a complaint of constructive dismissal will not stand up.

I have considered the legal precedents submitted by the complainant’s representative in support of her claim of constructive dismissal and I find that they do not support the complainant’s case.  

Findings

The burden of proof required in cases of constructive dismissal is a high bar for a complainant.   I find that, in the case under consideration here, the complainant has not shown that the conduct of her employer was so unreasonable that she had to leave her job, or that there was a fundamental breach in her contract of employment that made the continuation of her employment untenable. It is my view that the complainant resigned due to her requirement to work a narrow selection of shifts and that these shifts were not always available to her because of the respondent’s policy to cover as many shifts as possible with its own employees. I find that the respondent had shifts available for the complainant to work, but she had restricted availability due to other commitments. I note also the complainant’s evidence that she did not look for weekend work following her resignation, and that she continued working in the Monday to Friday job that she commenced in November 2017.

I find that the complainant has not made out the standard of the burden of proof required to demonstrate that the conduct of her employer was such that she had no alternative, but to leave her job.

I find that the complainant has not demonstrated that her employer behaved so unreasonably, or that there was a fundamental breach in her contract of employment that she had to resign from her job. Because of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded.

Breach of Section 6 – Comparable Terms and Conditions of Employment

Under this heading, the complainant said that she was treated less favourably compared to other employees who were not agency workers. For the complainant, Mr Asmussen said that this unfairness relates to the fact that the complainant was given less shifts compared to their permanent employees. At the hearing, Mr Asmussen said that this complaint is being brought against the employment agency and not against this respondent.

Breach of Section 11 – Access to Employment with the Hirer

The complainant complains that, in August 2017, she was not notified by the respondent that two vacancies were about to be advertised for permanent part-time customer services assistants. This is the job that the complainant was assigned to do for the respondent by the employment agency.

Breach of Section 6 – Comparable Terms and Conditions of Employment

Section 2(4) of the Protection of Employees (Temporary Agency Work) Act 2012, (“the Act”) provides as follows:

For the purposes of this Act, a person who, under a contract of employment referred to in paragraph (b) of the definition of “contract of employment”, is liable to pay the wages of an individual in respect of work done by that individual shall be deemed to be the individual’s employer.

For this reason, counsel for the respondent submitted that a complaint under this heading can only be submitted against the complainant’s employer, the employment agency.

Breach of Section 11 – Access to Employment with the Hirer

Counsel for the respondent said that no complaint under section 11 was submitted by the complainant on the form she submitted to the WRC on July 30th 2018.

At the hearing, the complainant’s counsel said that the complaint under section 6 of the Act is a complaint against the employment agency and not against this respondent.

No complaint was brought by the complainant under section 11 of the Act and it was raised for the first time at the hearing on December 12th 2018. I find that this complaint was not submitted within the required timeframe for submitting a complaint in accordance with section 41 of the Workplace Relations Act 2015.

For the reasons set out in the Findings and Conclusions section above, I have decided that these complaints are not upheld.

Agency working, constructive dismissal against the hirer