Complainant

Respondent

Parties

Representatives

Solicitors

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-00018868-001

02/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00018868-002

02/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018868-003

02/05/2018

The complainant commenced employment with the respondent on 30 September 2005 as a crew member at the respondent company. Her employment terminated on 19 February 2018 by virtue of her resignation. The complainant is alleging that she was discriminated against on grounds of gender in her conditions of employment and was subjected to harassment. She further alleges that she was subjected to a constructive unfair dismissal.

The complainant is a Latvian national. The complainant submits that on 15 October 2017, she was verbally abused and threatened by a colleague Mr. ED who had threatened her by screaming “f------ bitch”, “I want to kill you” and “I don’t want to see your ugly face” in the workplace. The complainant states that she had previously suffered from abuse by this colleague on 14 October 2017 and in August 2017. On the latter occasion, the complainant states that she reported this to her manager who replied, “what can I do”. The complainant states that she submitted a complaint with the assistance of a friend who has excellent English, in writing on 17 October 2017 in respect of the incident on 15 October 2017 and requested that this matter be dealt with by way of the formal procedure set out in the staff handbook. The complainant submits that she was greatly upset and distressed at this treatment and was fearful of going into work and attended her doctor due to the anxiety she suffered and was obliged to take certified sick leave. The complainant states that she was diagnosed as suffering from very high blood pressure and depression. The complainant asserts that no action was taken on foot of her complaint and her solicitor wrote to the respondent on 24 October 2017 calling on the company to institute an investigation into the complaint. The complainant states that no response was received to said letter.

The complainant’s solicitor wrote to the respondent again on 29 November 2017 and sent the letter by registered post but no response was forthcoming from the respondent.   The complainant submits that she remained out of work due to psychological/psychiatric injury she had suffered in the workplace. The complainant states that she continued to suffer from depression and very high blood pressure. The complainant asserts that the respondent eventually replied to her solicitor by letter dated 8 February 2018. The complainant contends that the content of this letter so incensed her that she lost all trust and confidence in the employer and she felt she had no choice but to resign and she felt that she had no confidence in the respondent that she would be treated fairly having regard to the fact that Mr. ED was the son of the area manager for the group company. The complainant states that she resigned from her employment by letter dated 19 February, 2018. The complainant stated that her legal representative submitted a data protection request by letter dated 11 April 2018 and received an inadequate and less than full response by letter dated 12 June 2018 as an example it was submitted that the complainant’s letter of resignation was not provided in the papers furnished which purported to be on her personnel file.

The complainant asserts that she experienced repeated ill treatment in the workplace, particularly at the hands of the area manager’s son, Mr. ED. It was submitted that this inappropriate treatment and behaviour reached a climax on 15 October 2017 when Mr. ED threatened to kill the complainant and called her a f------ bitch. The complainant alleges that this incident caused her to suffer psychologically and become depressed with very high blood pressure leading to her missing her father’s 80th birthday at home in Latvia. The complainant states that she had put a considerable amount of time and effort into preparations for his birthday as she was very close to her father having lost her mother to cancer in 2009 but she was unable to travel as she felt so upset, distressed and anxious that she then suffered very high blood pressure and a bout of depression, as evidenced by her medical certificates. The complainant submits that as she did not travel to Latvia in November 2017, he lost her chance to see her father alive last time because he died on 14 June 2018. In addition, the complainant contends that she was to attend a citizenship ceremony the next day after this incident and was so upset that she missed this ceremony as she was distracted and stressed to the point where she failed to see a cancellation on the Irish Naturalisation and Immigration Service (INIS) website.

The complainant submitted a written complaint to her manager, with the assistance of a friend but received no response. She states that her solicitor followed up by letter dated 24 October 2017 and did not receive a response until 8 February 2018. The complainant submits that this response or lack thereof so shook the complainant’s trust and confidence in the employer that she was entirely justified in not expecting a fair hearing or treatment in the workplace and tendered her resignation.

The complainant states that she was treated less favourably by virtue of her not being afforded the same terms of employment and the same working conditions as other employees in the respondent company.

Work schedule and days off        

The complainant states that she asked her manager many times to give her some sort of stable roster but she never received it. The complainant contends that she knew her schedule only in the week before she was due to work, sometimes less if she was needed to cover workers who were sick or on holidays. She states that she never knew which days off she would have and had no stability or predictability with respect to her days on and off. However, she states that Mr. ED always worked 5 days a week noon to 8 pm and had regular consistent days off i.e. Mondays and Tuesdays.

Taxi fare

The complainant states that when work shifts ended outside of public hours, the complainant and other non-Irish workers received only 50 % of taxi fare whilst Irish workers received 100% of taxi fare. The complainant submits that on one occasion Ms. RS, the shift manager gave the complainant 100% of taxi fare and later, D the manager scolded Ms. RS for doing so.

Company payments to employees who lost parents

The complainant states that when her mother died from cancer in 2009, the complainant did not get any support from the company but some of her colleagues did, for example Mr. VB received an undisclosed amount and additional paid days off when his father passed away.

Work on Public Holidays

The complainant submits that despite many verbal requests to get a day off, the complainant was always rostered and worked Christmas and New Year’s Eve save only in 2016 on New Year’s Eve when she was on her way to work, the shift manager rang her saying that she could return home as there was only a small amount of customers and enough staff.

Hourly rate

The complainant submits that it was common knowledge among the staff that those workers who were related to management had a higher rate of pay that the complainant despite doing the same or similar work.

The complainant states that when Mr. ED had his 21st birthday, he was given a cake with candles and the manager gathered all staff for congratulation and birthday song which was sang by staff. The complainant contends that when she had her 50th birthday (which coincided with her 10 years work for the respondent company), it was completely ignored by the manager. The complainant states that when Ms. SM left the company after a few months she was given a present of a gold item from a prominent Jewellers whilst the complainant was never given anything. The complainant submits that she is convinced that Mr. ED’s outburst on 15 October was directly related to the complainant’s citizenship ceremony on 16 October as it was common knowledge among her colleagues that she would go to the ceremony on 16 and Mr. ED had made discriminatory comments about non-Irish nationals in the past. As an example, the complainant contends that Mr. ED attributed his failure to get a 3rd level college place to “fucking foreigners took all our places” as Mr. ED had made this remark when he heard that the complainant’s daughter studied in DCU. The complainant submits that Mr. ED had made other disparaging remarks about foreigners on a few occasions for example when the complainant was to attend a DCU graduation ceremony in 2015 with her daughter. The complainant states that many of the instances of discrimination only came to the complainant’s attention after she had left the employment which explains why she did not raise these issues whilst she was in the workplace.

Time Limit Issue

The complainant’s legal representative submitted at the hearing that as the complainant had post traumatic stress disorder; this was an impediment to her lodging the complaint within the six month time frame and submits that this constitutes reasonable cause for the delay in lodging the complaint.

The respondent states that the complainant commenced employment with the company as a crew member on 30 December 2005. It states that she signed a contract of employment on 2 February 2007. The respondent states that crew members are paid in accordance with the statutory minimum wage. However, the complainant was paid a premium rate due to her length of service and at the time of her resignation she was paid €9.50 per hour. She moved from the Location B to Location T in February 2012 at the same time as the restaurant manager, Ms. G, made the same move on account of the good relationship between the two of them. Crew members work in the kitchen, front counter and the lobby. The complainant’s preference was to work in the kitchen and given her length of service as of the time of her resignation she had been accommodated for some time in respect to this preference.

All employees of the respondent are issued with a copy of the Employee Handbook (“the Handbook”) and must confirm receipt of same. The complainant first signed confirmation of receipt of the Handbook on 2 February 2007 and confirmed receipt of the updated Handbook on 16 January 2016. At the time of her resignation, the complainant’s restaurant manager was Ms. G and her Area Manager was Mr. RD.

Employment Equality Issues

The respondent states that as per the complainant’s complaint form to the WRC, the most recent date of alleged discrimination occurred on 15th October 2017 (the complainant’s last day attending at work). The complaint form was received by the WRC on 2nd May 2018 being over six months from the date of the alleged contravention complained of and therefore outside the statutory six-month time limit within which such claims must be instituted.

The respondent states that it is noted that from at least 24 October 2017, the date of the complainant’s solicitors’ first correspondence to the respondent, the complainant had the benefit of legal advice. In these circumstances therefore, it is submitted that the complainant will be unable to provide reasons that both explain the delay and amount to a justifiable excuse for it to be able show “reasonable cause” as required under the legislation to obtain an extension and as confirmed by the High Court in Minister for Finance v. Civil and Public Service Union [2007] ELR 36. In addressing this question, the Labour Court in both Abbott Vascular v. BaggottEET121 and Dundalk Institute of Technology v. Dalikeni EET122 confirmed that when examining this issue the Labour court should ask itself “if a reasonably diligent person, having the same state of knowledge of the material facts as the complainant, would have delayed in pursuing a claim under the Act for the reasons advanced by the complainant.” It is submitted that in this case a reasonably diligent person with the complainant’s knowledge would not have delayed in bringing the claim.Given the fact that the complainant had the benefit of legal advice from October 2017, it is submitted that she can provide no explanation for her delay so as to show that the failure to present her complaint within six months was due to “reasonable cause.”

The respondent submits that without prejudice to the above, the complainant’s substantive allegations of discrimination (based on the ground of gender) and of harassment are also denied by the respondent as follows:

a.    The complainant alleges that she was treated less favourably by being told her working schedule only a week in advance. As the complainant is aware, all employees were told their hours a week in advance by the posting of the schedule in the restaurant. At page 6 of the Handbook it provides that employees will be told their hours 5 days in advance. The complainant was not treated any differently to other employees in this respect. All employees (including the complainant) are entitled to make a request for availability preferences which would be accommodated by the respondent if possible subject to ensuring the business needs are met.    

b.    The complainant alleges she was treated less favourably in respect to the payment of taxi fares for hours worked outside pubic transport hours. She identifies no comparator here and refers to an undated occasion when she says the Ms. G reprimanded a shift manager for paying the complainant 100 per cent of her taxi fare. In fact, all employees only ever receive 50 per cent of their taxi fare for working hours outside public transport hours. The only two exceptions to this (which applied to all employees equally) were if an employee was required to cover from another restaurant or if someone was called in last minute to cover someone who was sick.  

c.    The alleged incident at paragraph 32 of the complainant’s submission in relation to a colleague who allegedly received an undisclosed amount and additional days paid off after the death of his father dates back to 2009 and therefore is completely out of time.

d.    In respect to working on Christmas Eve and New Year’s Eve, most employees will be rostered to work both these days as they are two of the busiest days of the year for the respondent. The complainant is not singled out here for less favourable treatment and indeed it is noted that she has not identified any comparator.

e.    The allegation at paragraph 34 asserting that staff who were related to management had a higher rate of pay is utterly without foundation and is spurious. All crew members are paid the statutory minimum wage and receive statutory increases to this hourly rate when and as they occur. Again, the complainant has identified no actual comparator or details to support this allegation.

f.     The allegation at paragraph 35 in relation to a birthday celebration for Mr. ED does not comprise an incident that could ever amount to discrimination. Again, the incident is not dated but as the complainant had her 50th birthday in 2015, it is clearly out of time.  

g.    The allegation at paragraph 36 in relation to a staff member receiving an item from a Jewellers on departing the company does not comprise an incident that could ever amount to discrimination and certainly not on the grounds of gender.

h.    The allegation at paragraph 37 by the complainant stating that the outburst by Mr. ED on 15 October was directly related to the complainant’s citizenship ceremony on 16 October is entirely speculative and the complainant provides no evidence whatsoever to support her claim in this regard. It is completely denied that Mr. ED had made discriminatory comments about non-Irish nationals in the past.

The respondent submits that the allegation at paragraph 38 of the complainant’s submission to the effect that Mr. ED “attributed his failure to get a 3rd level college place” to non-Irish nationals is not understood; prior to working for the respondent, Mr. ED had in fact taken up a college place offered to him but left after one year and joined the respondent company.   At paragraph 39 there is a vague reference to an alleged incident in relation to the complainant attending a graduation ceremony with her daughter in 2015 and again this is clearly completely out of time.

It is noted that quite apart from the complaint being out time, the complainant has also failed to make any prima facie case whatsoever of discrimination. In this respect, she has failed to establish facts from which discrimination could in any way be inferred. In Melbury Developments Ltd. v. Valpeters [2004] ELR 64, the Labour Court held that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” Based on the foregoing, is submitted that the complainant’s complaint of discrimination should not succeed.

Unfair Dismissal

The respondent submits that the complainant’s unfair dismissal claim is a claim of constructive dismissal meaning the complainant bears the onus of proof in establishing that she had no option but to leave her employment. It submits that the material facts in this case fail to disclose that the complainant was ever in such a situation.

The issue referred to by the complainant to justify resigning her employment on 19 February 2018 concerned an interaction that occurred on 15 October 2017 between the complainant and another employee, Mr. ED, both of whom worked in the kitchen. Mr ED is the son of Area Manager Mr. RD. The complainant submitted a formal complaint in writing on 16 October 2017 and requested that her complaint be dealt with under the formal grievance procedure.The complainant went out on sick leave the day after the incident and never returned to work prior to her resignation on 19 February 2018. The complainant submitted weekly medical certificates throughout that period.

In so far as the complainant alleges in her submission that her formal complaint was ignored by the respondent, this is strenuously denied by the respondent and it is submitted that it is completely refuted by the evidence. In fact, the restaurant manager Ms. G had extensive contact with the complainant throughout her absence and kept her updated on the progress of her complaint. The respondent submits that as can be seen from these notes,Ms. G first rang the complainant on 17 October 2017 (hurricane Ophelia having occurred on 16 October 2017 during which the restaurant was closed) to see how she was. The complainant said she was “okay” but had high blood pressure in response to which Ms. Gordan told her to look after herself and to let Ms. G know when she was feeling better so they “could sit down and have a chat” when she was back at work.

On 25 October 2017, Ms. G again rang the complainant to tell her that she was on the schedule to work on Friday from 12-8pm and to reassure her that she would not have to work with Mr. ED as Ms. G was “moving him to another restaurant pending the investigation.” In response, the complainant told Ms. G that she would be continuing her illness benefit and that she had an appointment with her doctor on 26 October 2017. Ms. G replied that there was no problem and to make sure that she looked after herself and to let her know when she was feeling better at which point Ms. G would include her on the work schedules and they could talk about the situation. The respondent asserts that similar conversations took place on 31 October 2017, 7 November and 14 November 2017. Thereafter, the complainant texted on a weekly basis to say that her medical certificate was being extended by a further week. The respondent submits that there is no mention in the complainant’s submission of the above conversations and interactions which is highly significant.  

At paragraph 6 of the complainant’s submission, it is stated that “no action was taken on foot of her complaint.” The respondent states that this is manifestly incorrect. In fact, the respondent acted immediately and in accordance with the Handbook in response to the complainant’s formal complaint. It should be noted that a complaint from Mr. ED about the incident had also been received on the same day as the complainant’s complaint. Ms. G conducted an initial investigation into the matter.In this respect she spoke to Mr. ED on 17 October 2017 (the restaurant having been closed the day before)to hear what he had to say about the incident on 15 October 2017. It can be seen that he admitted saying to the complainant that he was “going to kill” her but that he said it was said in anger as he felt that she had been deliberately winding him up and leaving him without stock at the start of his shift. Ms. G told Mr. ED that what he had said was wrong and that there would have to be an investigation into the matter and that they would have to go through procedures as per the Handbook. Ms. G also arranged for Mr. ED to be transferred to a different restaurant pending the investigation.

The respondent states that after Ms. G had conducted her initial investigation, the matter was passed to the Area Manger to conduct the disciplinary process. On the basis that Ms. G reported to Mr. RD, the father of Mr. ED, Mr. RD transferred the responsibility for the disciplinary process to Area Training Manager Ms. M who was from an entirely different area of the respondent company.

Ms. M then conducted a disciplinary process into the incident. This involved speaking with Mr. ED and the witnesses present at the time of the incident. She intended to speak to the complainant as part of the process but could not do so as the complainant remained on sick leave throughout.  

The respondent submitted notes of Ms. M’s disciplinary hearing with Mr. ED on 14 November 2017 and notes of the witness statements at hearing. Ms. M had a disciplinary hearing outcome meeting with Mr. ED on 20 November 2017 when she confirmed that it was her decision to issue him with a Final Written Warning. She confirmed at this meeting that she had not spoken to the complainant as she remained on sick leave but that she had the benefit of the complainant’s initial complaint. Ms. M stated that due to the mitigating circumstances and the once off use of the words in question, that she had decided to issue a Final Written Warning. She confirmed that Mr. ED was not permitted to attend the Location T restaurant (where the complainant worked) and was not permitted to go near the complainant on her return to work or to contact her. The respondent states that Mr. ED confirmed this was understood by him.

The respondent submitted a copy of the Final Written Warning as recorded on Mr. ED’s file at hearing. It submitted that this was an appropriate sanction in the circumstances given the one-off nature of the incident and the lack of any prior disciplinary record. The respondent submits that it had a duty to act fairly to both employees which duty it is submitted it went to considerable efforts to comply with. It is further submitted that the sanction of dismissal would in itself have been disproportionate in this case and vulnerable to challenge.

The respondent states that the above process and outcome was communicated to the complainant by letter of 8 February 2018 from Ms. B of Human Resources.This letter stated as follows:

“An immediate investigation was launched into the allegations made by both staff members. Due to the nature of the words used by E rather than the intent and as M had stated that she required a safe place to return to work it was decided that E would be transferred to another branch of X with immediate effect to facilitate M’s return to work and the ongoing investigation and subsequent actions.

Restaurant manager D contacted M that same week and informed her of her proposed rosters for the following week and the decision taking effect immediately regarding E’s transfer and the ongoing investigation and assured her in relation to returning to work and the ongoing investigation.

Following our internal investigation carried out by an Area Training Manager from another area within X Group which included investigations and interviews into details from both parties letters and statements from staff and managers involved, a disciplinary interview was conducted with E resulting in a decision to issue a final written warning to E on 20thNovember 2017 and this will remain on file for a period of 1 year as per our company agreement discipline procedures. We have accepted that while the words used by E were harsh and totally unacceptable there were mitigating circumstances and were part of a colloquialism and did not carry any intent to carry out such an action and were initially never meant to be overheard by M the time.

Additionally, E has resumed working in the transfer restaurant and has not returned to the T branch (my emphasis) as instructed during his disciplinary interview. As such this should facilitate and provide no reason for M not return to work as soon as her medical condition has improved.”

The respondent states that somewhat unexpectedly, in response to the respondent’s letter of 8 February 2018, the complainant submitted her resignation by letter dated 19 February 2018. The respondent submits that the complainant stated therein that after reading the respondent's 8 February letter she "realised that it's impossible for me to go back to work." She further stated that the circumstances of the incident on 15 October 2017 had been "misrepresented" and as a result she had “lost all trust and confidence” in the respondent as her employer. However, the respondent contends that no further explanation is provided, in particular she does not clarify how the circumstances had been misrepresented or why it was “impossible” for her to return to work in circumstances where she would not have to work with the person against whom she had made her formal complaint. It maintains that no attempt is made to explain or substantiate the claim made at paragraph 9 of the complainant’s submission that the content of the 8 February 2018 letter “so incensed” the complainant that she “lost all trust and confidence in the employer that she felt she had no choice but to resign as she had lost all trust and confidence in the employer and felt no confidence that she would be treated fairly having regard for the fact Mr. ED was the son of the area manager for the group.” The respondent submits that there appears to be a refusal by the complainant to acknowledge the extensive steps taken by the respondent to deal with the complainant’s formal grievance which resulted in the issuing of a Final Written Warning. Further, there is no detail provided whatsoever of what further steps the complainant believes the respondent ought to have taken. It is submitted that the statement at paragraph 9 of the complainant’s submission is made in denial of the actual facts. In response to the complainant's resignation by letter of 19 February 2018, Ms. B of the respondent replied by letter of 23 of February 2018 requesting that the complainant reconsider her decision and to that end offered to meet with the complainant to discuss her decision and also suggested that she might consider returning to another branch if that was more suitable. The letter also stated that both the investigating case manager Ms. M and restaurant manager Ms.G had expressed their surprise that the complainant had decided to resign particularly in light of the fact that they had carried out the requests as stated in her original letter in order to provide, as she had requested, a safe place to work and to facilitate her return to work as soon as she was able. The letter again confirmed the steps taken by the respondent in dealing with the matter including that Mr. ED had been transferred to another restaurant. There was no response by or on behalf of the complainant to this letter. By a further letter dated 22 March 2018 Ms. B wrote to the complainant noting that as the respondent had not heard from the complainant, the respondent was unsure if she had considered the options outlined in 23 February 2018 letter and unsure whether the complainant intended to return to work. It was further stated that if the respondent did not hear from the complainant within 14 days the respondent would assume that the complainant had decided to leave the respondent’s employment. Again, there was no response by or on behalf of the complainant to this letter. The respondent submits that the complainant’s position with it still remains open and the complainant can even at this stage return to work with the respondent to any branch of her choosing.

The respondent submits that the definition of “constructive dismissal” set out s.1(1) of the Unfair Dismissals Acts 1977 to 2015 refers to a termination that arises where based on the conduct of the employer, the employee either (a) has an entitlement to terminate the contract or (b) it was reasonable for the employee to terminate it.

In Paris Bakery & Pastry Ltd v. Mrzljak [DWT 1468] the Labour Court explained the definition of constructive dismissal in the following terms:

“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 breach of an essential term which goes to the root of the contract.  

Paragraph (c) (sic) of the definition [in the Unfair Dismissals Acts] 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.”

The respondent submits that based on the foregoing it is clear that to succeed in her case, the complainant has to establish either a repudiatory breach on the part of the respondent or that the respondent conducted its affairs in relation to the complainant so unreasonably that the complainant could not have been fairly expected to put up with it any longer. The onus is on the complainant to establish that her resignation was justified. It is the respondent’s submission that this was not the case for the following reasons:

The complainant was contacted on a weekly basis for the first four weeks of her absence by the restaurant manager Ms. G who kept the complainant apprised of the progress of the complaint.

In response to her complaint (and as first communicated to her on 25th October 2017), Mr. ED was moved to a different restaurant in order to assure the complainant that she could return to a safe place of work as soon as she was fit to do so.  

The complainant’s formal complaint was immediately investigated and resulted in the issuing of a Final Written Warning to Mr. ED, the person against whom the complainant had complained. It is notable that the complainant has identified no specific failings on the part of the respondent in respect to the conduct of the disciplinary process. The complainant’s position remains open to the complainant to resume at any restaurant of her choosing. It is submitted that based on the foregoing, that the complainant has not established either (a) a repudiatory breach on the part of the respondent entitling her to terminate her contract or (b) that the respondent had conducted its affairs in relation to the complainant so unreasonably that the complainant could not have been fairly expected to put with it any longer.  

The respondent submits that without prejudice to the foregoing, in response to the respondent’s solicitors’ letter of 20th September 2018 seeking confirmation of the complainant’s current employment status and of her attempts to find alternative employment (in accordance with her statutory obligation), the complainant’s solicitors replied by letter of 21st September confirming the complainant was currently unemployed. The respondent submits that the complainant is alleged to be suffering from post-traumatic stress and is not available for work and has been in receipt of illness benefit since 19th February 2018. Without prejudice to the respondent’s denial of the complainant’s claim for unfair dismissal, as the complainant is unfit to work, she has not accrued any financial loss under the Unfair Dismissals Acts and therefore any compensation made in her favour be limited to a maximum of four weeks’ remuneration as per s.7(1)(c)(ii).  

Terms of Employment (Information) Act

The claim in relation to section 7 of the Terms of Employment (Information) Act, 1994 was withdrawn by the complainant at the hearing. In this regard, it was noted that the complainant was furnished with a contract of employment signed by her on 2 February 2007.

Employment Equality Acts

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.   If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.   In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

Time limit Issues

Having carefully examined the evidence in relation to the equality claim, I note that the most recent date of alleged discrimination occurred on 15 October 2017 (the complainant’s last day attending at work) however the complaint form was received by the WRC on 2 May 2018; I note from the date of the complainant’s solicitors first correspondence to the respondent which was dated 24 October 2017 that the complainant had the benefit of legal advice. The complainant’s solicitor at the hearing stated that the complainant had post-traumatic stress disorder this was an impediment to her lodging the claim within the timeframe laid down in the legislation. Having adduced the totality of the evidence on this matter, I am satisfied that the complainant had the benefit of legal advice from her solicitor and I therefore do not accept that cogent evidence was provided by the complainant to both explain the delay and amount to a justifiable excuse for it to be able to show “reasonable cause” as required under the legislation. In the circumstances, find that I do not have jurisdiction to deal with the equality claims as these matters are out of time.

Unfair Dismissals Act

As the complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify her terminating her employment. Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign her position, often referred to as the “contract test”. This requires that an employer be “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 further performance” as held in Western Excavating (ECC) Ltd. v Sharp [1978] IRL 332.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted 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, if so she is justified in leaving. The question for me to decide is whether, because of the conduct of the respondent, the complainant was or would have been entitled, or it was or would have been reasonable for her to terminate the contract of employment.

Having carefully examined all the evidence in relation to the alleged constructive dismissal complaint, I find that the respondent did investigate the complaint, the respondent maintained ongoing contact with the complainant while she was on sick leave. I note that on 25 October, Ms. G rang the complainant to inform her that she was on the schedule to work on Friday from 12 – 8 pm and to reassure her that she would not have to work with Mr. ED as she was moving him to another restaurant pending the investigation. I note that similar conversations took place on 31 October 2017, 7 and 14 November 2017. Ms. G carried out her initial investigation and then the matter was passed to the Area Manager to conduct the disciplinary process. It was submitted that as Ms. G reported to Mr. RD (father of the complainant), Mr. RD transferred the responsibility for the disciplinary process to Area Training Manager, Ms. M who was from a different area of the respondent. Ms M carried out an investigation into the matter and met with Mr. ED and relevant witnesses and then conducted a disciplinary hearing with Mr. ED. On 20th November, Ms. M confirmed that it was her decision to issue Mr. ED with a Final Written Warning. She confirmed that Mr. ED was not permitted to attend at the T branch restaurant (where the complainant had worked) and was not permitted to go near the complainant on her return to work or to contact her and Mr. ED confirmed that this was understood by him. Ms. M stated that a copy of the Final Written Warning was recorded on Mr ED’s file. Having adduced the totality of the evidence in the complaint, in my view the measures undertaken by Ms. M were reasonable and appropriate in the circumstances given the nature of the incident and the lack of any prior disciplinary record by Mr. ED.

I also note that in response to the complainant’s resignation letter dated 19 February 2018, Ms. B of the respondent replied by letter of 23 February requesting the complainant to reconsider her decision and offered to meet with the complainant to discuss the matter and also suggested she may consider returning to another branch if that was more suitable. The respondent further stated on the day of the hearing that the complainant’s position remains open to the complainant to resume at any restaurant of her choosing.

Having carefully examined this complaint, I find that the complainant has not established either (a) a repudiatory breach on the part of the respondent entitling her to terminate her employment or (b) that the respondent had conducted its affairs in relation to the complainant so unreasonably that the complainant could not have been fairly expected to put up with it any longer. Accordingly, I am satisfied that the complainant’s resignation does not amount to a constructive unfair dismissal within the meaning of the Acts.    

Employment Equality Acts

I find that I have no jurisdiction to hear said claims as they were issued outside the timeframe set out in the Acts and no cogent evidence was provided to demonstrate reasonable cause for the delay in lodging the complaints.

Unfair Dismissals Act

For the reasons outlined above, I find that complainant was not subjected to a constructive unfair dismissal within the meaning of the Acts.

Constructive unfair dismissal, time limits, no reasonable cause