Complainant

Respondent

Anonymised Parties

A Dental Assistant

A Dentist

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022977-001

01/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022977-002

01/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00022977-003

01/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00022977-004

01/11/2018

The complainant submitted claims under section 7 of the Terms of Employment (Information) Act, 1994, section 27 of the Organisation of Working Time Act, 1997, section 6 of the Payment of Wages Act, 1991 and Section 8 of the Unfair Dismissals Act, 1977.  These claims were submitted on 1st of November 2018 thus the cognisable 6-month period for these complaints’ dates from 2nd of May 2018 to 1st of November 2018.

I proceeded to a hearing of these matters on the 26th of April 2019.

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

CA-00022977-001

01/11/2018

The complainant submits that

She was never provided with a written statement as to the terms of her employment nor provided with any written contract of employment,

The respondent submits that

the complainant had worked for the previous practice owner Dr. I and she did not have a contract when she worked for him,

the complainant’s terms and conditions continued when the respondent Dr. L took over the practice,

Dr. L understood that a verbal contract was sufficient.

Section 3 of the Act provides as follows:

“ Written statement of terms of employment

(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say…

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say…

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs, (h), (i), (j), (k) and (l) of the said subsection (1) may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) [or (1A)] shall be signed and dated by or on behalf of the employer.

(5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6)

(a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1) or (1A)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.”

The complainant advised the hearing that she was never provided with a written statement containing the necessary, or any, particulars by the Respondent. The respondent Dr. L at the hearing did not deny this assertion but submitted that the complainant had worked for the previous practice owner Dr. I and stated that the complainant did not have a contract when she worked for him.   The respondent Dr. L stated that the complainant’s terms and conditions continued when the respondent took over the practice.  Dr. L stated that she understood that a verbal contract was sufficient.  

Having regard to the totality of the evidence adduced I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information) Act, 1994 and that the Complainant was not provided with a written statement of her terms and conditions of employment at any stage during her period of employment.

I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information) Act, 1994 and that the Complainant was not provided with a written statement of her terms and conditions of employment at any stage during her period of employment.

Having considered the submissions of both parties, I declare that the complaint is well founded. Taking all of the circumstances of this case into consideration, I direct the Respondent to pay the Complainant compensation of €600 in respect of the breach.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022977-002

01/11/2018

The complainant submits that

She was not allocated the requisite break periods during her employment,

Lunch breaks were not properly provided, and she was required to work during what was to be an allocated lunch period,

She did not receive breaks as per her statutory entitlements, notwithstanding repeated requests for same.

The Respondent submits that

The complainant did get lunch breaks and the respondent and complainant often went out to lunch together,

The complainant was also allowed breaks to facilitate the complainant collecting her child from school

The complainant also had breaks in between appointments as indicated in the appointment book and the business was not very busy.

Section 12 of the Organisation of Working Time Act, 1997 provides as follows:

“Rests and intervals at work

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

The cognisable 6-month period for these complaints’ dates from 2nd of May 2018 to 1st of November 2018.   The complainant advised the hearing that she resigned her employment on the 11th of July 2018 and that she had been absent from work on sick leave since the 12th of April 2018.

As the cognisable period for this complaint runs from the 2nd of May 2018 it would appear that the complainant was not physically in attendance at work during the six-month time period covered by the complaint.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) (d) in the case of a dispute relating to the entitlement of an employee under the National Minimum Wage Act 2000, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

(i) the date on which the employee obtains a statement of his or her average hourly rate of pay in respect of the relevant pay reference period in accordance with section 23 of that Act,

(ii) in circumstances where that statement is not provided having been requested by the employee to be provided to him or her, the day after the date of expiration of the time within which that statement was required to be provided by the employer in accordance with that section,

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The complainant in the present case resigned her employment by letter dated the 11th of July 2018 but she had been absent from work on sick leave since the 12th of April 2018.   The complainant submitted her claim to the WRC on the 1st of November 2018.   Accordingly given the six months’ time limit I can only consider alleged breaches of Section 12 for the period from 2nd of May 2018 following which time the complainant was not physically in attendance at work during the six-month time period covered by the complaint.

The complainant advised the hearing that she resigned her employment following numerous issues including the non-receipt of breaks and being overworked but directly following a dispute with the respondent in April 2018 over a €100 tip which Dr. L received.   The complainants stated that Dr. L received the €100 tip from a customer and that she had initially agreed to split the €100 with the complainant but later stated that she was going to use the money to buy new staff uniforms.  From the evidence adduced it is clear that the parties had a ‘falling out’ following this incident and the complainant did not return to work after this.   The complainant’s termination of employment is the subject of a separate complaint under the Unfair Dismissals Acts in which she has claimed that she was constructively dismissed from her employment.

The complainant in support of a request for an extension of the time limits requested that the Commission take into account the effect that this incident with the respondent had on her mentally and physically. The complainant asserts that she was absent from work due to work related stress from 12th of April 2018 until her resignation on the 11th of July 2018. The complainant submitted medical certs which stated that the complainant was unfit to work due to “medical reasons”.   These certs do not state that the absence was due to work related stress.   Documentation was also presented to the hearing in respect of numerous job applications made by the complainant during the period from 12th of April 2018 until her resignation from the respondent’s employment on the 11th of July 2018.  

Having carefully considered the matter and the totality of the evidence adduced in this regard, I find that this claim is out of time and that the Complainant has not shown reasonable cause to empower me to extend the applicable time limits.

Having carefully considered all evidence available to me I conclude that there was no breach of Section 12 within the cognisable six months’ time period.  

I find that there was no breach of Section 12 within the cognisable six months’ time period and accordingly this claim is not well founded.  

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00022977-003

01/11/2018

The complainant submits that

On finishing her employment, she was not paid for all accrued annual leave days nor was she the paid the correct net figure as she had been paid during her employment,

Her P45 did not reflect what she was actually paid weekly during her employment which has also affected her benefits.

the Respondent failed, refused and/or neglected to pay the Claimant sick pay during her absence from work,

the Respondent has failed, refused and/or neglected to pay to the Claimant the amount properly due and owing to her at the date of her resignation in respect of holiday pay' in respect of which she is owed 39.7 hours.

The respondent submits that

The complainant is not owed any outstanding holiday pay or sick pay and has in fact received an overpayment from her employment up to the date of her resignation,

Section 5(6) of the Payment of Wages Act, 1991 – 2015 provides as follows –

“Where – (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with the Act), or (b) none of the wages that are properly payable to the employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant.  

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)     4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)     one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23. Compensation on cesser of employment provides

“(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

The herein complaint was presented to the WRC on 1st of November 2018   thus the cognisable 6-month period for these complaints dates from 2nd of May 2018 to 1st of November 2018.

The complainant advised the hearing that she resigned her employment on the 11th of July 2018 and that she had been absent from work on sick leave since the 12th of April, 2018.

However, to consider a claim for unpaid holidays, I must examine the issue in the context of the relevant leave year. Section 2(1) of the 1997 Act defines the “leave year” as “a year beginning on any 1st day of April.”

The complainant advised the hearing that she is owed 39.7 hours of annual leave which she submits amounts to €583.86. The complainant also stated that she was entitled to 16 days A/L of which she had taken 9 days and she added that she had 7 days leave outstanding.

The respondent advised the hearing that the complainant was entitled to 44.8 hours holidays for the period from 1st of January 2018 up to her resignation on 13th of July 2018.   The respondent advised the hearing that the complainant had already taken 41 hours Annual Leave during the period and that she was thus owed 3.8 hours annual leave which amounted to €51.68 which the respondent paid to the complainant in her final payslip dated 13th of July 2018 presented to the hearing.

The complainant disputes this calculation and submits that she is owed39.7 hours which she submits amounts to €583.86. The complainant submitted that she was entitled to 16 days leave and that she had only taken 9 of those days.

There was a disagreement between the parties regarding the complainants weekly pay and rate of pay. The complainant submits that she was paid €350 per week. The complainant in support of this assertion produced an extract form her bank statement showing a payment form the respondent of €350 on 13th of April 2018.

The respondent advised the hearing that this payment represents €270 which was the complainants weekly rate of pay as well as an additional €80 which represents the €100 tip less €20 paid to Revenue which the respondent and complainant had argued over on 8th of April 2018 and which the respondent told the complainant following the argument that the complainant could have the entire tip. The respondent advised the hearing that she gave the complainant €80 in this regard as €20 of this represented the amount she paid to Revenue.   The respondent Dr. L stated that the complainant was paid €270 per week following a request from the complainant that she be permitted to reduce her hours to 20 hours per week in order to qualify for a medical card.   The respondent provided documentary evidence of the previous six months payslips as evidence of the complainant’s hours and rate of pay.  Having considered all of the evidence adduced I am satisfied the complainant’s weekly hours were 20 hours per week and that she was paid €270 per week for these hours.

The six-month cognisable period for the purpose of this complaint is covered by the leave year April 1st, 2018 – March 31st, 2019 given that the cognisable period only begins on 2nd of May 2018.

Therefore, I may only adjudicate on the period from the 1st April 2018 to the 13th of July 2018.

Given that the complainant was a part time worker I am satisfied given her hours of work that she had accrued a total of 24 hours annual leave during the cognisable leave period.

I note that the respondent submits that the complainant had already taken her leave allocation however the respondent also advised the hearing that it had no formal mechanism for booking leave or for keeping track of leave taken.   I also note that there was no mention of paid annual leave on the pay slips provided.

Both parties agree that the complainant was paid an amount of €51.68 in respect of annual leave in her final payslip in July 2018.   The respondent submits that this payment was for 3.8 hours annual leave.

I am thus satisfied on the balance of probabilities and having considered the totality of the evidence adduced that the complainant is entitled to payment for 24 hours accrued annual leave less the 3.8 hours for which she was paid which amounts to 20.2 hours.

Consequently, I find that the Respondent’s failure to make this payment to the Complainant represents an unlawful deduction in line with Section 5 (6) of the 1991 Act.

I declare this complaint to be well founded and I direct the respondent to pay the complainant €400 in respect of the unpaid wages and in compensation for the breach of Section 5(6).

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00022977-004

01/11/2018

The complainant submits that

she had no option but to resign due to the manner in which she was treated by her employer over an extended period of time in relation to the non-allocation of appropriate breaks, the stress that it was causing her and damage to her health, along with the fact that her employer ignored her requests to remedy matters she submits that she was left with no choice but to resign,

Furthermore, the complainant advised the hearing that her employer withheld €50 from her that had been given to Dr. L as a tip by a client which should have been given to the complainant. The complainant was notified of this tip by the respondent Dr. L who she states initially agreed to split the €100 tip with the complainant before later stating that she was intending to purchase staff uniforms with the money.

The respondent submits that

she has always treated the complainant Ms. R with the utmost respect and fairness. The respondent stated that the complainant had never at any time expressed any difficulties about her work during her employment,

she and the complainant had a good working relationship and had been friends who were guests in each other’s houses and often went to lunch together and that there was never an issue until the 5th of April 2018 when Dr. L and the complainant had a ‘falling out’ over a €100 tip given to Dr. L by a patient,

Following this incident, the complainant was absent from work on sick leave until she resigned her employment by letter dated 11th of July 2018 received by the respondent on 13th of July 2018.

The complainant advised the hearing that she had no option but to resign her employment with the respondent due to the manner in which she states she was treated by the respondent over an extended period of time in relation to the non-allocation of appropriate breaks, the stress that it was causing her and damage to her health, along with the fact that her employer ignored her requests to remedy matters she submits that she was left with no choice but to resign.

Furthermore, the complainant advised the hearing that her employer Dr. L had withheld €50 from her that had been given to Dr. L as a tip by a client which should have been given to the complainant. The complainant was notified of this tip by the respondent Dr. L who she states initially agreed to split the €100 tip with the complainant before later stating that she was intending to purchase staff uniforms with the money.

The complainant added that she did not have any written contract or policy documents, so she believed she had attempted to resolve matters directly with her employer but without resolution and that she was left with no alternative but to resign.

It is the Claimant's case that she was constructively dismissed in the following circumstances:

(a) the Respondent's conduct was so unreasonable that the Applicant could not fairly be expected to continue in her employment;

(b) the Respondent's conduct was such that the Applicant's health was unreasonably and unnecessarily put at risk, thereby necessitating her resignation;

(c) the Respondent's conduct was such that it constituted a unilateral breach of the Applicant's contract of employment;

(d) the failure of the Respondent to engage in any meaningful grievance resolution process with the Applicant indicted the Respondent's intention not to be bound by the contract of employment'

The complainant advised the hearing that she did not get her break entitlements on a regular basis as Dr. L did not close the surgery during lunchtime.   The complainant stated that as well as being a dental assistant she was expected to answer the phone and greet patients when they arrived at the surgery as the receptionist did not work full time and her hours of work only overlapped with the complainant from 2 to 2.30 on three of the four days the complainant was working.   The complainant stated that she worked three days from 9.00 until 2.30 and one long day from 9.00 until 6 and that in order to get a lunch break on her long day she would leave the surgery and go upstairs to the canteen to have a lunch break.   The complainant stated that she had to remove herself from the surgery for a half hour and go upstairs to the canteen to make sure she got her half an hour break.   The complainant stated that on other days when she finished at 2.30pm she had to try and grab a sandwich for herself and eat it at her desk in between patients and answering the phone.    The complainant stated that she would often go out and get the respondent and herself a sandwich and bring it back to work.   The complainant told the hearing that she suffered from IBS for which she had to take medication a half an hour before eating, she stated that she told Dr. L about this and while Dr. L regularly asked her if she had taken her medication, she did not offer her specific break times. The complainant was left to take breaks when or if she got a chance.    

The respondent advised the hearing that the complainant always got her breaks and stated that there was plenty of time for breaks in between patients as the practice was not very busy at that time. As evidence of this the respondent provided her patient appointment book and pointed to the periods of time in between patients or where there were no appointments scheduled and stated that there were plenty of breaks in between patients given that the practice was not very busy as Dr. L was only at the stage of building up patients in this practice as she had previously been based in Cork.  Dr. L stated that she and the complainant were friends and that they often went to lunch together in nearby restaurants, Dr. L stated that the complainant was given leeway to go and collect her kids form school during work hours and that she sometimes collected her daughter and brought her back to the surgery with her where she waited until the complainant was finished. Dr. L stated that she never minded these things as the complainant was her friend and so she left her do what she needed to do.     The respondent stated that she also employed a receptionist on a part time basis and that the receptionist started work at 2pm on the days the complainant finished at 2.30.    

The respondent advised the hearing that she has always treated the complainant Ms. R with the utmost respect and fairness. The respondent stated that the complainant had never at any time expressed any difficulties about her work during her employment. The respondent Dr. L went on to state that if she had raised concerns they would have been addressed immediately. The respondent Dr. L told the hearing that she and the complainant had a good working relationship and had been friends who exchanged Christmas gifts and were guests in each other’s houses and often went to lunch together and that there was never an issue until the 5th of April 2018 when Dr. L and the complainant had a ‘falling out’ over a €100 tip given to Dr. L by a customer. Dr. L advised the hearing that she had been given the €100 tip by a patient Mr. J for whom she had done extensive dental work free of charge. Dr. L stated that the customer gave her the €100 tip stating that this is ‘between you and me’ meaning to keep it between him and her. Dr. L advised the hearing that she later told the complainant about the tip that the customer had given it to her.

The respondent Dr. L advised the hearing that she decided to use the €100 tip money to buy new staff uniforms.   Dr. L stated that later that day she was working on a patient when the complainant came in and asked her for her wages as she was finishing work.     Dr. L stated that she directed the complainant to the drawer where her wages were Dr. L stated that the complainant then asked, “what about the €50 tip” and Dr. L had replied “I’m going to buy uniforms from that”. The complainant did not say anything in response to this but left for the day.    

Dr. L advised the hearing that later that day she received a number of text messages from the complainant asking for her share of the €100 tip and stating that Dr. L had told her that the customer in question had left €50 for her and €50 for the complainant. Dr. L replied to the texts stating that the customer had left the tip for Dr. L given that she had carried out €500 worth of dental work for him free of charge and that he had said to her at the time of giving her the tip that it was between her and him.   Dr. L explained this to the complainant in the text message but then added that the complainant could have all of the money if she wished. The complainant replied stating that Dr. L had held up the two €50 notes and said, ‘one for you and one for me’.

The complainant at the hearing again reiterated her understanding that Dr. L had said ‘one for me and one for you’ referring to the two €50 notes.   Dr. L stated that she had not said that but that she had said that the customer gave her the €100 in two €50 notes and said this is “between you and me” referring to himself and Dr. L.

It appears from the differing accounts of this conversation given by both Dr. L and the complainant that there was a misunderstanding between the parties as to what Dr. L had meant when she relayed the conversation to the complainant which had taken place between herself and the customer Mr. J at the time of his giving her the €100 tip.   The complainant from this conversation had understood that Dr. L intended to split the €100 with the complainant and the complainant was then disappointed when she was not given the €50 on her way home that day. This is evident form the texts messages sent by the complainant to Dr. L later that day.

The respondent Dr. L advised the hearing that following this exchange of text messages the complainant the next day approached Dr. L in her car while Dr. L was walking to work. Dr. L told the hearing that the complainant pulled up in front of her in her car in the estate where Dr. L lived while she was walking to work.   Dr. L stated that the complainant had intentionally driven in the direction of her house and had intercepted her on her way to work and asked her to sit into the car which Dr. L refused to do. Dr. L stated that the complainant was aggressive, intimidating, and confrontational.   Dr. L stated that she had been upset by the complainant’s behaviour and had started crying.   Dr. L stated that she told the complainant that they would discuss the matter during working hours.    

The complainant at the hearing agreed that she had driven towards Dr. L s home that morning in an attempt to catch Dr. L on her way to work and to talk to her before she got to work.   The complainant submits that she was not aggressive but that she pulled up in her car and rolled down the window and asked Dr. L to sit in so she could talk to her.     The complainant told the hearing that Dr. L had then proceeded to walk on, and the complainant drove on a little to try and catch up with her, but that Dr. L would not engage in the conversation.  The complainant stated that Dr. L started crying and refused to sit in to the car with her or to discuss the matter and that she told the complainant that they were no longer friends just people who work together.   The complainant stated that Dr. L also told her that she should show her more respect as she is a mature woman.

Dr. L told the hearing that it was after this that the complainant’s absence from work on sick leave began. The respondent Dr. L went on to state that during her sick leave from work, the complainant did not communicate with her and left her medical certs in the main reception of the medical centre without informing Dr. L who did not receive them for a number of days. Dr. L stated that the reason given on the medical certs for the complainant’s absence was stated as 'medical reasons' and was not elaborated on.     Dr. L told the hearing that there had been no mention of work-related stress. The complainant at the hearing agreed that she did not mention work-related stress.

Dr. L stated that the week before her sick leave, the complainant appeared perfectly content in the workplace and did not express that she was having any difficulties or issues. Dr. L stated that the last medical cert she received from the complainant was dated up until the 6th of July 2018 and the complainant resigned by letter dated 13th of July 2018.

Constructive Dismissal

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 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”.

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised 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.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer 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.”

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

The complainant told the hearing that she had often complained to the respondent that she was over worked and that she had complained about not getting adequate breaks, but she stated that the respondent did nothing to address these complaints. The respondent Dr. L denies that the complainant ever raised any of these issues with her and states that the complainant had plenty of breaks and that there was never a problem or issue between them until the incident involving the €100 tip.   I note that the complainant in this case has not adduced any documentary evidence to support her assertion that she had raised issues or grievances with the respondent. The only documentary evidence of any complaint or issue is the exchange of text messages between the complainant and respondent which was initiated by the complainant after the respondent had received a €100 tip which the complainant had understood was to be split with her but which the respondent stated was gviven to the respondent herself. The complainant at the hearing did not produce any other evidence of any issue or grievance having been raised by her with the respondent prior to the dispute over the €100 tip.

Even after the raising of the tip issue the complainant went on sick leave from work which she advised the respondent was due to ‘medical reasons.  The complainant submits that this absence was due to work related stress but states that she did not put that on her medical certs and did not advise the respondent that this was the reason for her absence. The complainant did not return to work and it is clear from the evidence adduced that the complainant did not raise any grievance issue during this period, before resigning her employment on 13th of July 2018. In addition, I note from the complainant’s submissions that she was actively applying for other jobs from the 20th of April 2018.

In all of the circumstances of this complaint, I am satisfied that the complainant has not established that the respondents behaviour was such that it amounted to a significant breach going to the root of the contract of employment, or which indicated that the respondent no longer intended to be bound by one or more of the essential terms of the contract such that the complainant was entitled to treat herself as discharged from any other performance.   I am also satisfied that the complainant has failed to establish that the respondents conduct was so unreasonable that she was justified in leaving her employment.   In addition, I find that the complainant did not act reasonably in resigning her employment prior to raising a grievance and affording the respondent an opportunity to respond to her complaints or grievances.  

Accordingly, I conclude that the complainant has failed to discharge the burden of proof and that this claim is not well founded.

Having considered the submissions of both parties, I declare that this complaint is not well founded.