ADJ-00016377

Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

HR Suite

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-00020660-001

19/07/2018

The Complainant started her employment with the Respondent on 1st December 2018 following a transfer of undertakings. She had worked for the previous employer since June 2014. The Complainant’s employment was terminated on 9th July 2018.

The Complainant referred her complaint to the WRC on 19th July 2018. In her WRC Complain Form the Complainant claimed that she had to leave her employment due to the conduct of her employer. The Complainant is seeking compensation.

This complaint is closely associated with another complaint made by the Complainant against the same Respondent. The other complaint is subject to report bearing reference ADJ-00015628. The complaints were heard together at a single adjudication hearing on 10th January 2018. Additional submissions were received from the parties on 17th, 22nd and 23rd January 2018.

The Complainant submitted a complaint to the WRC stating in her WRC Complaint Form that she had to leave her employment due to the conduct of the Respondent. She also claimed that she was “fired” because she was asking for her hours of work.

The Complainant submitted that her hours of work were reduced but her duties were increased. For example, she was asked to wash dirty cups. She submitted the she started to “rebel” when her workload was increased, and she questioned the time allocation. Following that, her work hours were increased by 15 minutes. The Complainant claims that she raised the matter of her work hours with Ms A of the Respondent’s client. As a result, she had two investigations meetings which took place on 3rd and 9th July 2018. They related to the same events. The Complainant argues that as a result she was dismissed.

The Complainant also submitted that in January 2018 she made a complaint to the WRC Inspectorate in relation to her rate of pay. She alleges that she was picked on after that. The Complainant argues that she asked about the reduction of her working hours in January 2018 as there were more duties given to her. She stated that in February 2018 disciplinary procedure was initiated. She claims that on 2nd February again her workload was increased. She submits that she suffered from work-related stress.

The Complainant submitted that she asked for her P45 but claims that if she hadn’t left she would be dismissed.

The Complainant exhibited documentary evidence in the form of email, minutes of meetings and letters.

The Respondent claims that the Complainant was not dismissed from her employment but she resigned from the Respondent Company on 10th July 2018.

The Respondent submits that the Complainant has been contacted on a number of occasions over a number of months with regard to her performance and duties at work. Emails were sent to the Complainant with regard to her performance on 11th January and 2nd February 2018.

The Respondent submits that from 5th February to 19th February 2018 the Complainant was not at work and informed the Respondent that her children were sick at the time.

The Complainant was again spoken to on 7th March 2018 with regard to her performance at work. Although there were some minor issues to be addressed, overall, the Respondent was satisfied that there was an overall improvement with her performance. The Respondent submits that an email was sent to the Complainant to confirm this on 7th March 2018. Issues that the Complainant had raised regarding the time allocated to her tasks at the client site were also addressed in this letter.

The Complainant was absent from work from 12th March to 26th March 2018 and provided a medical certificate stating that she was suffering from stress. As a result of this, Mr M of the Respondent was in touch with the Complainant on 14th March 2018 and stated that if she wished to discuss anything at any time or if there was anything that could be done to facilitate her return to work following her sick leave to get in touch with him.

On 18th June 2018 the Complainant was subject to a disciplinary investigation. The Complainant attended the meeting with her son. The allegations discussed at the meeting regarded inappropriate and rude behaviour towards a client, who had complained to the Respondent. The Complainant was invited to the meeting on 14th June 2018. The Complainant has worked onsite with their client from the time the Respondent took over the contract in 2016 and with her previous employer before that. The Complainant received a copy of the details of the complaint which the company received from the client.

The finding of the investigation was that the Complainant had committed misconduct in relation to inappropriate behaviour toward a client.

The Respondent submits that the Complainant was invited to a disciplinary outcome meeting on 28th June 2018. The meeting was held on 3rd July 2018 with Ms H, proprietor. The Complainant received the outcome decision on 9th July 2018. The sanction was a final written warning. In addition to this and due to the seriousness of the actions and the inappropriate nature of same the Respondent was left with no option but to remove the Complainant from the client’s premises. The Respondent submits that this was in order to fulfil the client’s request not to have to interact with the Complainant any longer and to preserve the working relationship with its client. The Respondent outlined in the letter the possible negative consequences to the business due to this behaviour, with the possible loss of the contract with the client being significant.

The Respondent submits that on 9th July the Complainant was informed that she would be on temporary layoff until alternative work become available in the location that the Complainant deemed suitable.

The Respondent submits that the Complainant was informed of her right to appeal but did not appeal this decision. On 10th July 2018 the Complainant requested her P45.

The Respondent submits that the Complainant informed the Respondent that she had sent a complaint to the WRC in relation to her hours of work. The Complainant was then issued with the Respondent’s grievance procedure and 22nd June 2018 and asked to engage with the internal procedure. This was during the investigation process. This was never invoked although the Complainant was informed that she could contact any member of management to deal with any grievance that she wished to raise. The Respondent submits that a WRC inspection occurred on 5th July 2018. There were no issues highlighted with regard to work practices in the Respondent company.

The Respondent submits that no dismissal occurred in this case. The Complainant resigned her position with the Respondent on her own accord. Having regard to all the facts, the Respondent is of the belief that there was no conduct by the Respondent that justified the Complainant’s decision to regard herself as constructively dismissed as defined in the Unfair Dismissals Act.

In support, the Respondent cited Daniel O’Gorman v Glen Tyres Company Ltd. [2010] UD2314/2010, Harrold v St. Michael’s House [2008] E.L.R. 1.

The Complainant in her WRC Complaint Form submitted that she had to leave her employment due to the conduct of the Respondent. She also claimed that she was dismissed.

Taking the complexity of the matters raised I offered the Complainant an adjournment to allow her to seek advice and / or representation. The Complainant declined.

At the hearing, with the assistance of an interpreter, the Complainant confirmed that she resigned her position due to the conduct of the Respondent. The Complainant confirmed that she is seeking compensation in that regard.

Section 8 of the Unfair Dismissals Act, 1977, as amended provides for making complaints regarding unfair dismissal in contravention of Section 6 of that Act. For a claim of constructive dismissal to be properly brought under the Act, the Complainant must satisfy the definition in Section 1(1)(b) of the Act, which 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 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”.

The burden of proof in constructive dismissal lies with the Complainant. In Allen v Independent Newspapers (Ireland) Ltd. 2002 ELR 84 it was held that the onus is on the Complainant to prove his case and the test for the Complainant is whether it was reasonable for him to terminate his contract.

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was 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. It summarised the ‘contract test’ 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 -v- Dunnes Stores [2009] E.L.R. 61:“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 in order to determine if it is such that the employee cannot be expected to put up with it.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

The Complainant must have acted reasonably in tendering her resignation. Dr D.Ryan argues that “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee’s resignation. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints”.[1]

The question that arises for decision in this case is whether or not it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct.

The Complainant referred to two main reasons for her resignation. Firstly, she repeatedly referred to the reduction of her hours of work. Secondly, she raised the matter of the disciplinary process.

In respect of the reduction of the Complainant’s hours, I find that it occurred in July 2017 when the client of the Respondent requested such a change. Post-hearing, the Respondent provided a copy of email exchange with its client confirming the client’s request for the reduction of hours. I note that the Complainant remained working for the Respondent for one year following the reduction of hours. The Complainant did not raise a grievance as per the Respondent’s procedures. Rather, on 13th June 2018 she approached a staff member of the client (Ms A) questioning the allocation of hours. This, in turn, led to the instigation of the disciplinary process. The staff member in question, Ms A made a complaint to the Respondent claiming that the Complainant approached her in relation to the change of her hours. Ms A claimed that the Complainant was very loud, rude and extremely hostile. Ms A stated that she did not want any more interactions with the Complainant.

There was no dispute that the Complainant was suspended with pay on 14th June 2018 and she was invited by letter dated 14th June 2018 to an investigatory meeting. She was informed of the allegations against her and her right to representation. Copies of the details of Ms A’s complaint, terms of reference for the investigation and the Respondent’s Disciplinary Procedure were given to the Complainant.

The Investigation meeting took place on 18th June 2018. The Complainant was accompanied by her son. The Investigator found that the Complainant “has committed misconduct in terms of inappropriate and rude behaviour towards our client”. The Investigator was of the opinion that the Complainant spoke about work related issues which should have been directed to the Respondent and that this interaction was loud, rude and hostile.

The Respondent’s Disciplinary Procedure lists “rudeness to customers at any time” as an example of serious misconduct, which can lead to a final warning, suspension without pay or dismissal.

The findings of the investigation were issued to the Outcome Manager, Ms H.

By letter dated 28th June 2018 the Complainant was invited to a disciplinary meeting, which was held on 3rd July 2018. The outcome letter was issued to the Complainant on 9th July 2018. The Complainant was issued with a final written warning. She was informed that due to seriousness of the Complainant’s actions and the inappropriate nature of same the Respondent has been left with no option but to remove the Complainant from the particular site. The Respondent noted that the action was necessary in order to fulfil the client’s request not to have to interact with the Complainant any longer and to preserve the working relationship with the client. The Complainant was put on a temporary lay off while the Respondent sought alternative work in another location that the Complainant deems suitable. The Complainant was informed of her right to appeal the decision.

The Complainant did not appeal the outcome of the disciplinary process. Rather, she requested her P45 on 10th July 2018.

The Complainant confirmed at the hearing that at the time she was working part-time for another employer and, as of the date of termination of her employment with the Respondent she secured additional hours with that employer and is in full time employment.

The Complainant must pursue and follow procedures for addressing their grievances as outlined in contract of employment or handbook. In Conway v Ulster Bank UD 474/1981 it was held that “the Complainant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaint”. In Tierney v DER Ireland Ltd. UD866/1999 EAT stated “Central to this is that she shows that she has pursued to a reasonable extent all avenues of appeal without a satisfactory or reasonable outcome having been achieved”.Similarly, the EAT case John Travers v MBNA Ireland Ltd. UD720/2006 stated “…the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case… In constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. In Keane v Western Health Board UD 940/1988 it was held that a knowledge that a grievance procedure exists is germane.

I am satisfied that the Compliant was aware of the internal grievance and disciplinary procedures. She confirmed at the hearing that she had utilised the procedures previously. The Complainant was also advised by the Respondent to utilise same. She was advised of her right to appeal the outcome of the disciplinary process. The Complainant failed to exhaust the procedures.

Having regard to the circumstances, I cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of her contract of employment.

Based upon the reasoning as set out aforesaid, I find this complaint to be not well-founded.

Constructive dismissal- procedures not exhausted