Complainant

Respondent

Anonymised Parties

A Restaurant Worker

A Restaurant

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-00016538-001

27/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00017031-001

24/01/2018

The complainant claims that she was left with no alternative but to resign her position owing to the way in which she was treated and that she was constructively dismissed. Her complaint CA-00017031-001 was withdrawn.

The complainant claims that she commenced employment on 7th September 2016 at the restaurant. She informed the respondent around November 2016 that she was pregnant and detailed that the manager, Ms A did, not appear happy with this and told her she needed to be careful who she got into bed with. She took this to mean that Ms A was annoyed that she was pregnant. She submitted a sick cert in April and was told by Ms to take her belongings with her.

Prior to going on sick leave, there had been issues with how long it took to get a copy of her terms and conditions of employment and she was surprised that it referred to a probationary period of six months. Her second contract of employment which she received in on April 26th was also for a six-month period which she was again surprised at as she believed the respondent wanted her to do a second probationary period. She queried by email, on 20th May 2017, what did the second contract mean but had to follow up on 29th May 2017 as the respondent did not reply. She was not happy with their response when it came on 30th May. On 21st May 2017 she had commenced her maternity leave.

As she did not feel that the respondent wanted her to stay in employment, she submitted an email in December 2017 requesting her P45. It was her expectation that she would be asked to reconsider her decision and was surprised that she was not.

After the hearing, the complainant sent on some limited evidence of efforts to mitigate her loss.

The respondent detailed that they provided the complainant with a six-month contract followed by another six-month contract.

During the complainant’s sick leave, they did not contact her as they did not want to bother her as they knew it was pregnancy related illness. It was detailed that they asked her to take her belongings as they were doing renovations and they asked all the employees to remove their belongings as their premises are small.

Ms A denied that she ever made the comment to the complainant that she should be careful with who she gets into bed with.

It was also detailed that the complainant never utilised the grievance procedure if she had any issues in the workplace. It was accepted that they had not replied immediately to her first email as it was detailed that they were very busy but that they did reply on 30th May 2017 and confirmed to the complainant that she was not on probation.

It was denied that she had been constructively dismissed.

The claim 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”.

In reaching my conclusion I have carefully evaluated the evidence adduced and taken full account of the written and oral submission made by the parties.  

The burden of proof, which is a very high one, rests with the complainant and it is necessary that she show that her resignation was not voluntary and that she had no option but to resign owing to the behaviour of the respondent.

In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is also well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”.

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.” According to the Supreme Court in Berber, “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.” Therefore, this definition places the burden of proof on the employee to show that his resignation was justified in all the circumstances.  

The complainant details that she was left with no alternative but to resign her position as she felt that she was not wanted at the restaurant, owing to the comments made by Ms A regarding who she got into bed with, the issue with the contract and the behaviour of Ms A when she told her to take her belongings.   I note that the complainant had a contract of employment which although not the most detailed does outline that in the event of a grievance employees should raise issues with the owner.   She did not do this at any stage.  

While it is understandable that she was upset that she did not get an immediate reply when she emailed the respondent on 20th May 2017 and had to email them a second time on 29th May 2017, however, the respondent did reply within a day after the second email which I would see as a reasonable response time. If she was still unhappy with this response from the respondent, she did not follow up with them. Furthermore, her email when she resigns does not refer to any issues that she may have had. It is noteworthy that she detailed in her evidence that she hoped that they would ask her to stay when she submitted her email of resignation which would further suggest that the complainant acted prematurely in resigning.

The complainant does not meet the burden of proof required in terms of the reasonableness test or contract test. I find that the Complainant has failed to establish that she had no option but to resign her position due to the conduct of her employer.   I find that the complainant has failed to demonstrate that she was justified in her decision to resign and I am satisfied that it was not reasonable for her to do so.   Accordingly, I find that the complainant has not been constructively dismissed.

I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

This complaint was withdrawn.

CA-00016538-001

I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded and I dismiss the complaint.

Unfair dismissal, maternity, constructive dismissal