Complainant

Respondent

Anonymised Parties

Barber

Barbershop

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-00023311-001

17/11/2018

The Complainant contends that she was constructively dismissed.

The Complainant worked as a Barber for the Respondent from 1st May 2015 to 27th September 2018. She had been given written contracts of employment in February 2016 and November 2017 but she did not sign them as she did not accept some of the terms.   She contends however, that she had a contractual agreement with the Respondent to work the following hours:

Thursdays 10.00am – 6.00pm

Fridays       2.30pm – 7.00pm

Saturdays 10.00am – 5.00pm

On Saturday 22nd September 2018, the Complainant was asked by her manager to work the following Tuesday 25th September. She said that she could not work that day. She consulted with her legal representative who advised her that she had a contractual obligation to work Thursdays, Fridays and Saturdays.     Further, the Respondent was well aware that she could not work Tuesdays due to childminding issues.   The Complainant then presented herself for work on Thursday 27th September 2018, whereupon she was told to go home, that there was no work for her.

It is submitted that the Complainant left her employment without engaging in the grievance procedure, following a disagreement between the Respondent and the Complainant about working hours. It is the Respondent’s position that the working hours of the Complainant were changed from Thursdays to Tuesdays and that this was not an unreasonable position.   The Complainant refused to reconsider her resignation or engage in any grievance procedure. It is submitted that case law supports the contention that failure to engage in such a process must prove fatal to her case.

It is common case that when the Complainant turned up for work on the Thursday 27th September 2018, she was told she should not have been there, and there was no work for her. The fact is that the Respondent here unilaterally changed the Complainant’s working day from Thursday to Tuesday against the expressed will and personal arrangements of the Complainant. I find that this was an unreasonable position to take and while I note the Respondent’s point about lack of engagement in the grievance process, I also note the Respondent’s refusal to engage with the Complainant when she attended a meeting accompanied by a person of her choice.  

The definition of constructive dismissal is contained in section 1 of the Act as follows:

“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”.

Case law from Employment Appeals Tribunals decisions show that “in order to succeed in a claim of constructive dismissal a claimant must show that either their contractual terms were altered in such a way going to the root of the contract as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.” (Kearns v Silverfern [2013]).

In this instant case, I find that the Respondent sought to change the fundamental element of the Complainant’s contract in the form of the day she was available for work and the Respondent unreasonably did not take into account her childminding issues which appeared to prevent her from complying with the change.

I declare her complaint to be well founded and I require the Respondent to pay to the complainant the sum of €1,000 compensation.