Complainant

Respondent

Anonymised Parties

An Employee

A Restaurant

Representatives

none 

 none

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-00017603-001

23/02/2018

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

CA-00017603-002

23/02/2018

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

CA-00017603-003

23/02/2018

The Complainant commenced employment with the Respondent, a restaurant, on 29 March 2016, in the role of kitchen porter.

Following a workplace accident on 13 March 2017, the Complainant went on certified sick leave. While on sick leave, the Complainant submitted a complaint to the Workplace Relations Commission (WRC) on 15 May 2017. This complaint consisted of three separate complaints, two of which were made under the Organisation of Working Time Act, 1997, relating respectively to pay and hours of work and a third made under the Terms of Employment (Information) Act, 1994, relating to the Respondent’s alleged failure to provide the Complainant with a Contract of Employment.

A hearing at the WRC, in relation to the above-mentioned complaints, took place on 17 August 2017. Following discussions which took place at that WRC hearing, agreement was reached between the parties, which included the payment of compensation to the Complainant with regard to the complaints submitted and, as a result, the Complainant subsequently withdrew the complaint.

By way of email dated 22 August 2017, the Complainant informed the Respondent that she was in a position to return to work on 28 August 2017. Over the following number of days, a series of email communication took place between the parties in relation to matters pertaining to the Complainant’s return to work. A meeting, for the same purpose, took place between the parties on 27 August 2017. Further email communication took place between the parties on 29 August 2017.

By way of letter dated 22 September 2017, the Complainant tendered her resignation to the Respondent. In so doing, the Complainant provided one week’s notice to the Respondent, with the result that the effective date of resignation was 29 September 2017.

On 25 September 2017, the Respondent wrote to the Complainant and replied to the issues raised in her letter of resignation. In addition, the Respondent confirmed that they wished to have the Complainant back at work and were willing to meet to try to resolve any concerns she may have in this regard. The Complainant did not engage any further with the Respondent.

On 23 February 2018, the Complainant submitted a complaint to the WRC under the following legislation/references:

·       Complaint under Terms of Employment (Information) Act, 1994 – alleging failure by the Respondent to notify, in writing, changes to the Complainant’s terms of employment. (reference CA-00017603-001)

·       Complaint under Terms of Employment (Information) Act, 1994 – alleging that the Complainant had not received a statement in writing of her terms of employment. (reference CA-00017603-002)

·       Complaint under Unfair Dismissals Act, 1977 – alleging constructive dismissal.   (reference CA-00017603-003)

The Complainant’s submission in relation to the specific elements of her complaint are set out as follows:

Complaint under Terms of Employment (Information) Act, 1994 – (reference CA-00017603-001)

The Complainant submitted that, on 27 August 2017, the Respondent presented her with the backdated Contract of Employment, in which they had unilaterally and dramatically reduced her working hours.

According to the Complainant’s submission, her hours of work were changed from a minimum of 38 hours per fortnight to an ad hoc basis where hours would be provided as required by the Respondent. The Complainant submitted that she found this unacceptable as it represented a unilateral change to our terms of employment.

Complaint under Terms of Employment (Information) Act, 1994 – (reference CA-00017603-002)

The Complainant submitted that, on 27 August 2017, she was presented with a Contract of Employment, which was dated 1 February 2017. In this regard, the Complainant stated that she had been in the Respondent’s employment since 29 March 2017.

With regard to the Contract of Employment which was presented to her on 27 August 2017, the Complainant submitted that she had issues with the following aspects:

·       It contained a probation period of six months.

·       The company’s annual leave year was not identified.

·       There was no reference to: maternity leave, special leave or a pension scheme.

Finally, the Complainant submitted that the contract also included a medical questionnaire which did not identify: (a) how long such information would be kept for, (b) where the information would be kept or (c) if the information could be shared with a third party.

Complaint under Unfair Dismissals Act, 1977 - (reference CA-00017603-003)

In addition to the complaint originally set out in her electronic complaint form dated 23 February 2018, the Complainant submitted a detailed complaint document, dated 13 March 2018, in support of her claim of constructive dismissal. That document set out the following as the basis for her complaint:

a)       Breach of contract:

The Complainant’s claim under this heading related to the presentation by the Respondent of a backdated Contract of Employment, at the meeting on 27 August 2017.

The Complainant also referred to the unacceptable changes to the contract which resulted in her hours been changed from full-time to an ad hoc basis. The Complainant also contested the Respondent’s contention that the hours being offered on her return to work where the same as those she worked prior to her workplace accident. The Complainant further objected to the Respondent’s reliance on the “nature of the business” being taken into consideration when allocating hours of work.

In conclusion, under this heading, the Complainant submitted that she confirmed to the Respondent on 22 August 2017 that she was ready to come back to work and was available to work any hours. The Complainant further submitted that when she was advised by the Respondent that her hours were being cut to 9 hours per week, she sought an explanation in writing. However, the Complainant submitted that instead of providing an explanation the Respondent engaged in “misleading and tricky conduct” which caused her stress.

b)      Unacceptable Contract of Employment:

In addition to the issues raised, under the previous heading, in relation to the Contract of Employment provided to her on 27 August 2017, the Complainant also raised the following issues, under the above heading:

·       The absence of the date on which the employment started.

·       No address of employer.

·       No place of work.

·       No specification as to whether the contract was temporary or fixed.

In particular, the Respondent submitted that the contract contains the following condition: “we are unable to guarantee you minimum hours each week and you will be rostered to work hours as required on an ad hoc basis”. The Complainant submitted that this condition was unacceptable to her.

Finally, under this heading, the Complainant submitted that she was placed under undue and unacceptable pressure to sign the Contract of Employment provided to her on 27 August 2017. The Complainant further objected to being requested, in an email from the Respondent, to declare in writing that she will not have any more outstanding issues.

c)       Inappropriate conduct from Management:

According to the Complainant’s submission, she received a phone call from one of the Respondent’s directors on 26 September 2016, which was her day off. The Complainant stated that the purpose of the call was to have her attend a meeting in the Respondent’s premises with two of their directors.

The Complainant submitted that the director shouted at her in an angry and scary tone, which intimidated her. The Complainant further submitted that following the phone call she received a text from the director, which she found to be inappropriate in tone.

d)      Usage of CCTV in the workplace:

According to the Complainant’s submission, at the original WRC hearing on 17 August 2017, the Respondent had stated, in relation to the issue of breaks that “there was ample opportunity during quiet periods to take breaks and there was hours of video evidence to back up this point”.

According to the Complainant’s submission, this indicated that the Respondent was monitoring staff and, to facilitate this, were retaining video evidence for inordinately long periods of time. Further, in this regard, the Complainant submitted that she had not been given or shown any written CCTV policy or grievance procedure but had been told by management on 27 August 2017 not to have any more outstanding issues.

In conclusion, the Complainant submitted that she found all of the above unacceptable.

e)      Conduct regarding holiday request:

According to the Complainant’s evidence, she submitted a request for 17 days annual leave on 22 August 2017. The Complainant further stated that, in doing so, she provided two weeks’ notice as was management’s requirements in this regard. Consequently, the Complainant submitted that the Respondent’s suggestion that a request was made at short notice, was obviously untrue.

The Complainant further submitted that the Respondent did not reply to her request for three days. She also submitted that when she received a reply from a member of the management team it stated that: “I am not in a position to authorise it until we sit down and discuss all outstanding issues including your hours on your return to work.

In addition, the Complainant submitted that the Respondent tried to suggest that it was company policy not to give more than two weeks holidays to an employee. The Complainant further submitted that this was untrue as another member of staff had been allowed to take a leave period greater than two weeks. Consequently, the Complainant submitted that she was being treated differently from other staff members and that this was unfair.

The Complainant submitted that she found the situation very annoying and stressful as, after five days of stressful and tiring interaction with the Respondent, she still did not know if her holidays have been approved. However, the Complainant stated that after the meeting on 27 August 2017, she received an email from the manager stating that her three weeks leave was granted but some parts will be unpaid.

In further evidence, the Complainant stated that she then contacted the manager by phone to confirm that her leave had been approved. According to the Complainant, the manager confirmed that there was no problem with her taking three weeks holidays, that she could proceed with making her travel arrangements and that she (the Manager) were put confirmation of the approval in writing to the Complainant. The Complainant stated that when she received an email from the Manager the approval of annual leave was conditional on her acceptance of the Contract of Employment, which had been provided to her at the meeting earlier that day, her acceptance of the Respondent’s calculation of her holiday entitlement and that she would declare that she did not have any other outstanding issues with them.

According to the Complainant, she found management’s conduct in this regard to be unacceptable and disconcerting. She further stated that she had totally lost trust and confidence in management.

f)        Calculation of holiday entitlements:

According to the Complainant’s submission, the Contract of Employment, provided to her during the meeting on 27 August 2017, did not identify the leave year that was being applied in the calculation of annual leave. The Complainant further submitted that management calculated her holidays in a strange manner and, in particular, her holiday entitlement, while on sick leave, was wrongly calculated as 22 weeks instead of 24 weeks.

In conclusion, the Complainant alleged that the Respondent was creating their own employment law by defining a full-time employee as a person that works 45 hours or more per week.

In conclusion, the Complainant submitted that the manner of calculation of her holiday entitlements was a further example of the inappropriate manner in which the Respondent was dealing with her complaints.

g)       Conduct regarding entitlements set out in Irish Employment Legislation:

According to the Complainant’s submission, every time she sought her basic entitlements, as set out in Irish Employment Legislation, she had to engage in a long, stressful, tiring battle with management, which consisted of a lot of contradictory emails and backdated documents. The Complainant submitted that she could no longer accept such behaviour from the Respondent.

In support of her claim in this regard, the Complainant referenced bank holidays not being paid, breaks not been given, hours being cut in retaliation for complaints made and issues in relation to the food policy. According to the Complainant, she was eventually forced to raise these matters at the WRC. In further submission, the Complainant stated that the fact that she accepted compensation from the Respondent at the WRC did not “cancel away their misconduct”.

In conclusion, in relation to this element of a complaint, the Complainant stated that having to write several emails and letters of complaint was very tiring and stressful and demonstrated how ineffective it was bringing complaints to management.

h)      Conduct regarding payslips and P45:

The Complainant submitted that, even after her resignation, the Respondent’s conduct remained unacceptable. In support of her contention in this regard, the Complainant submitted that she was kept employed by the Respondent for an additional three weeks, against her will.

According to the Complainant’s submission, when she asked, several times, for her payslips and P45 she was informed they would be forwarded shortly. However, the Complainant submitted that the Respondent did not keep their word in this regard and that their conduct in relation to the issuing of payslips and the P45 was once again unacceptable and stressful.

The Respondent’s submission, in response to the various elements and complaints submitted by the Complainant, are set out as follows;

Complaint under Terms of Employment (Information) Act, 1994 – (reference CA-00017603-001)

The Respondent submitted that the Complainant received one Contract of Employment. It was further submitted by the Respondent that, as there have been no changes to the terms contained in that contract, they are unclear as to why a complaint has been made under this section.

According to the Respondent’s evidence, the Complainant’s Contract of Employment was one of three issues addressed at a previous WRC hearing. The Respondent submitted that both parties accepted the terms of the Adjudication and the settlement was agreed, which resulted in the complaint been subsequently withdrawn by the Complainant.

In summary, in relation to this aspect of the Complainant’s complaint, the Respondent submitted that an explanation had been provided in the response letter of 21 June 17, as to why there had been a delay in providing contracts. It was stated by the Respondent that a draft contract was subsequently presented to the Complainant, for discussion and review, as a meeting on 27 August 2017. The Respondent further submitted that, despite requests to meet, discuss and finalise the Contract of Employment, they received no feedback on the contract prior to the Complainant’s resignation.

Complaint under Terms of Employment (Information) Act, 1994 – (reference CA-00017603-002)

According to the Respondent’s submission, the issue of the Contract of Employment was addressed at the previous WRC Adjudication Hearing. The Respondent further submitted that both parties accepted the terms of the Adjudication and settlement was agreed.

In support of their position in this regard, the Respondent submitted the following timeline of events leading up to the Complainant’s resignation:

·       22 August 2017: the Complainant indicated by email that she wished to return to work.

·       25 August 2017: a member of the Respondent’s management team replied to the Complainant requesting her to attend a meeting to discuss her return to work, Contract of Employment and outstanding holidays. Following an email indicating that the Complainant could not attend the meeting, the Respondent forwarded a further request for a meeting at any time over the following few days or the following week to discuss the aforementioned matters.

·       26 August 2017: the Respondent received a request from the Complainant seeking confirmation that a number of conditions be satisfied before she returned to work.

·       27 August 2017: a meeting took place between the Respondent and the Complainant at which the rota for the following week, a draft contract, together with a copy of the staff handbook was presented for discussion and review. Following the meeting the Respondent emailed the Complainant confirming that the date error on the contract would be changed and that she (the Complainant) should take a few days to review the contract, rota, break policy etc and revert with any concerns she may have.

·       22 September 2017: the Complainant resigned for her employment, outlining a number of reasons – including that she was not happy with the terms of her Contract of Employment.

·       25 September 2017: the Respondent emails the Complainant in response to all the concerns raised in her resignation letter. In particular, in relation to the issues with the Contract of Employment the letter stated: “your date of commencement was as you stated 29 March 2016”. The Complainant was again reminded of the grievance procedure and invited to meet to discuss any issues causing her concern.

In summary, the Respondent submitted that every effort was made to satisfy the numerous requests made by the Complainant. According to the Respondent, the email evidence shows that meetings were requested on several occasions to discuss the Complainant’s terms and conditions of employment and her holiday entitlements. It was further submitted that the Complainant was given a contract for review on 27 August 2017, but she declined to discuss, sign and/or return it until after she resigned on 22 September 2017.

In conclusion, on this element of the Complainant’s complaint, the Respondent submitted that even after the Complainant had submitted her resignation, they again requested that she meet with them to discuss her concerns, however, the offer was declined.

Complaint under Unfair Dismissals Act, 1977 - (reference CA-00017603-003)

In response to the Complainant’s claim of constructive dismissal, the Respondent submitted a response under each of the headings contained in the Complainant’s letter of resignation, as follows:

1.       Reduction of hours:

According to the Respondent’s submission, the Complainant’s hours of work have varied during her employment. It was further submitted that these variations were sometimes at the Complainant’s request, in order to meet the needs of her family or social welfare claims and at other times were to suit the business requirements.

According to the Respondent’s submission, the Complainant’s request for additional hours on her return to work was further complicated by the fact that at the time she was requesting to return to work, she was also seeking three weeks holidays in the same month in which she intended to return. The Respondent submitted that, although this was difficult to do, they tried to accommodate this request. The Respondent further stated that the evidence shows that while they did accommodate the Complainant with her leave requests, it caused considerable disruption to staff rotas, which had already been organised.

The Respondent submitted that rotas are prepared two weeks in advance. According to the Respondent’s submission, they explained to the Complainant that it was unreasonable and unfair to other employees to expect them to change shifts within the five-day notice provided by the Complainant. The Respondent further submitted that it is also impossible to request additional hours and at the same time request three weeks holidays.

According to the Respondent’s submission, at all times, they allocated hours and provided letters to the Complainant to meet her personal requirements. The Respondent further submitted that the email evidence adduced, shows that as soon as the Complainant indicated she required additional hours, meetings were requested on several occasions to discuss her hours. It was further submitted that, even after the Complainant resigned, the Respondent once again requested that she meet to discuss her concerns.

2.       Request for holidays:

The Respondent refuted the Complainant’s claim that she had been unfairly treated in respect of a request for holidays and, in this regard, provided email evidence in relation to the correspondence that took place between the parties on this matter.

3.       CCTV in the workplace:

According the Respondent’s submission, a copy of the CCTV policy was given to all employees and is displayed on the premises. It was further submitted that, on 29 August 2017, the Respondent received a medical certificate noting that the Complainant would not be returning to work because of work-related stress.

4.       Request for P45:

The Respondent submitted that the Complainant specifically requested that her holiday pay be paid over a period of three weeks. It was further submitted that the Respondent repeatedly explained to the Complainant that if this was the case, then she would not receive her P45 until the end of that period.

According to the Respondent, the Complainant technically remained an employee until the end of holiday period and once it had expired, her P 45 would issue.

The Respondent submitted email communication between the parties as evidence in support of their submission on this element of the Complainant’s complaint.

In conclusion on this point, the Respondent stated that they are well aware that it is possible to prepare a P45 (together with all outstanding holiday pay) immediately when an employee received their final wage/salary. However, the Respondent submitted that, in the within case, they were simply following the request received from the Complainant that she wanted her holiday pay paid over a three-week period.

Conclusion:

In conclusion, with respect to the Complainant’s claim of constructive dismissal, the Respondent submitted that, in their opinion, the Complainant had no intention of returning to work. They submitted it was their belief that, from the outset, the Complainant’s intention was to be dismissed or be forced to resign to enable a further claim for compensation to the WRC.

According to the Respondent, this is evidenced by the list of requirements outlined in emails of 22 and 26 August, which the Complainant indicated she wanted satisfied before her return to work. The Respondent further submitted that, when notified that these conditions were agreed, the Complainant decided to dispute her allocated rota hours and Contract of Employment. According to the Respondent, the Complainant was offered, on at least four occasions, the opportunity to avail of more hours but she did not respond.

The Respondent further submitted that the Complainant then decided that her holiday entitlement offered another opportunity for a dispute. According to the Respondent, when the Complainant was offered holiday terms outside her normal contractual entitlements, she then decided additional claims in relation to CCTV policy, discrimination and bullying were necessary.

In summary, the Respondent strongly disputed all allegations outlined in the Complainant’s complaint.

Having carefully considered all of the evidence adduced, including all submissions made prior to, during and subsequent to the Oral Hearing, I proceeded to consider, in detail, each element of the Complainant’s complaints and I set out my considerations and findings as follows:

Complaint under Terms of Employment (Information) Act, 1994 – (reference CA-00017603-001)

The Complainant’s complaint under this reference related to her allegation that she was not notified in writing of changes to her terms of employment.

The evidence adduced shows that when the Complainant commenced her employment with the Respondent on 29 March 2016 she was not provided with a Contract of Employment or statement of terms and conditions of employment. This subsequently became part of a complaint she submitted to the WRC on 15 May 2017.

From the evidence presented, it appears that, at an Oral Hearing into her complaint at the WRC on 17 August 2017, all matters pertaining to the complaints made by the Complainant were resolved during discussions.

With regard to the specific complaint in relation to non-receipt of a Contract of Employment, I note from the evidence that, at that time, the Respondent acknowledged that the Complainant had not received a contract. According to the Respondent’s submission, at the time, this was due to an oversight on their part and due to the pressures associated with opening a new restaurant, with the result that it took longer to get personnel matters properly organised. However, the Respondent further submitted that, at that point in time, contracts of employment had been prepared for all employees and that they would have no hesitation in providing the Complainant with her written contract.

The evidence presented suggests that, as the Complainant was on sick leave at the time of the WRC hearing, the Respondent awaited her return to work before providing her with a Contract of Employment. At a meeting on 27 August 2017, the day before the Complainant was due to return to work, she was provided with a Contract of Employment.

In an email to the Complainant, shortly following the meeting of 27 August, the Respondent stated inter alia: “I have given you a copy of the contract which I will change to tomorrow’s date as requested. If you need to take a few days to read through this or seek advice that is fine. Please come back to me by Wednesday 30th August with any changes or areas of concern you may have. If you are satisfied with the contract you can give it back to me signed”.

The Complainant’s contention, in support of her complaint under this reference, is that she was not notified in writing of what she claims to be an unacceptable change to the terms of employment. While the Complainant has referenced several aspects of the contract with which she was unhappy, the main issue appears to revolve around what she contends is a reduction in her work hours to 9 hours per week, which she claimed was a significant reduction on what she was working prior to her workplace accident in March 2017.

In addition, the Complainant objects to the inclusion of the following term in the Contract of Employment, under the heading of “Hours of Work”: “we are unable to guarantee you minimum hours each week and you will be rostered to work hours as required on an ad hoc basis to meet the demands of the business”.

According to the Complainant, the allocation of 9 hours per week was significantly less than what she had been working. The Complainant submitted that during 2016 she had worked an average of 33 hours per week and for the first 11 weeks of 2017 had worked an average of 29 hours per week.

Clearly, the Complainant considered that, taken in conjunction with the above quoted term from her contract, the 9 hours of work being allocated to her on her first week back to work constituted a change to the terms of employment. Having carefully reviewed all of the evidence I do not agree with the Complainant’s interpretation in this regard. I am satisfied that, while the Complainant may have worked the average hours which she states she did in 2016 and up to March 2017, there is nothing to suggest that these were guaranteed hours.

The Complainant placed considerable significance on three letters which the Respondent issued pertaining to her hours of work. These letters, which were dated 28 April 2016, 18 October 2016, and 30 November 2016, were, according to the Respondent’s evidence, issued at the Complainant’s request for social welfare purposes. The letters state, inter alia, that the Complainant was working, on average 39, 8 and 19 hours per week respectively. In my view, this correspondence supports the Respondent’s contention that, rather than being fixed, the Complainant hours of work per week fluctuated in line with business demands.

My view in this regard is further confirmed when I reviewed a sample of 14 payslips submitted in evidence.   This sample shows that the weekly hours worked by the Complainant ranged from a low of 11 hours to a high of 32 hours, with an average over the sample of 19 hours per week. Based on this, I find the pattern to be consistent with the terms contained in the Contract of Employment provided to the Complainant on 27 August 2017 whereby it states that minimum hours per week could not be guaranteed but would be rostered to meet business demands.

In this regard, I am further satisfied that the proposed allocation of nine hours in the week the Complainant was due to return to work was not intended to be a fixed allocation from thereon. Clearly, in a scenario where the Respondent was advised on 22 August 2017 that the Complainant was fit to return to work on 28 August, it is not unreasonable that they may not be in a position to immediately restore her to the roster without causing some disruption to other staff and their allocation of hours.

Taking all of the above into consideration, I am satisfied that there was no change to the Complainant’s terms of employment which requires notification in writing at that time. Consequently, I find that the Complainant’s claim in this regard is not well founded and is, therefore, rejected.

Complaint under Terms of Employment (Information) Act, 1994 – (reference CA-00017603-002)

The Complainant’s claim under this complaint reference relates to a contention that she was not provided with a statement in writing of the terms of employment.

Having carefully reviewed all of the evidence submitted, I find that this claim is similar to that contained in the Complainant’s earlier complaint to the WRC in May 2017. The evidence further shows that this matter was included as part of the resolution reached between the parties at the adjudication hearing on 17 August 2017. As part of that resolution, the Respondent made a payment in compensation, which is acknowledged by the Complainant in her own evidence.

Clearly, the Complainant cannot now seek to raise the same complaint for a second time.

However, notwithstanding the above, I also find from the evidence that the Complainant was provided with a copy of the Contract of Employment in writing on 27 August 2017 and was given the opportunity to review it and/or take advice in relation to it before agreeing to sign it. Consequently, I find that the Complainant’s complaint as submitted on 23 February 2018 that she did not receive a statement in writing of the terms of employment is factually incorrect.

Therefore, taking all of the above into consideration I find that the Complainant’s claim in this regard is not well founded and is therefore rejected.

Complaint under Unfair Dismissals Act, 1977 - (reference CA-00017603-003)

The Complainant is claiming constructive dismissal on the basis that she claims she was left with no option but to tender her resignation, which she submitted to the Respondent in a letter dated 22 September 2017.

Constructive dismissal relates to a situation where an employee terminates their Contract of Employment, as was the situation in the case at hand.

Section 1 of the Unfair Dismissal of Act, 1977, defines such a dismissal 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,”

Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the Contract of Employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored.

The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their own action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept.

Unlike a complaint of unfair dismissal, where the burden of proof rests with the employer to show that the dismissal was not unfair, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign based on their employer’s conduct.

As already stated significant case law exists which underpins the above concepts. For example, with regard to the burden of proof, the Employment Appeals Tribunal (EAT) held, in UD 1146/2011, that “in such cases [constructive dismissal] a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

This was further confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the onus is on the claimant to prove his case” and that “the test for the claimant is whether it was reasonable for him to terminate his contract”.  

It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the Respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

Having carefully and thoroughly reviewed all of the evidence submitted in relation to the Complainant’s complaint, I’m satisfied that the tendering of her resignation on 22 September 2017 arose from her belief that she had no choice but to resign from her employment because of a breach of the terms of her Contract of Employment and also because of the misconduct of her employer.

As can be seen from the findings above in relation to the other two elements of the Complainant’s complaint, I found to be no basis to the alleged breaches of contract with regard to the provision of her Contract of Employment or the alleged reduction in working hours.

The other significant issue submitted by the Complainant in support of her claim for constructive dismissal related to the Respondent’s handling of her annual leave request in the calculation of holiday entitlements. Having carefully considered all of the evidence adduced, I find that the Complainant’s contention in this regard is not well founded.

The evidence adduced shows that the Complainant submitted a request for annual leave, by way of an email send to the Respondent on 20 August 2017, at a point in time when she was on sick leave and approximately one hour before she advised her employer that she would be in a position to resume work on 28 August 2017. The request for annual leave consisted of a 3.5 week period of absence. By way of email, sent less than one hour after receipt of the request for the annual leave, one of the Respondent’s management team responded, stating, inter alia, that she would speak with one of her superiors to organise any holiday pay owed.

The Complainant sent a further email to the Respondent on 25 August 2017 seeking an answer in relation to her annual leave request and advising that her travel arrangements and associated costs were depending on approval of her request. The Respondent’s general manager emailed the Complainant by return and requested a meeting with her at 3:00pm that afternoon to discuss both her Contract of Employment and her annual leave request.

The Complainant responded that, as she was busy and the notice was very short, she would not be in a position to attend the proposed meeting. The Complainant went on a to refer to her annual leave request and advised the Respondent that she if did not receive a written response, by midday the following day (26 August 2017), she would assume that her leave request has been accepted and she would feel authorised to proceed with her travel arrangements.

The Respondent sent an email to the Complainant on 26 August 2017 advising that there was no issue with her holiday entitlement, that she was entitled to 13 days leave and that she was entitled to take up to 10 days at any one time. The Respondent went on to state that the Complainant could take leave on dates that suit her in September and the additional three days could be carried forward.

The evidence shows that the next communication between the parties was correspondence from the Respondent to the Complainant following their meeting on 27 August 2017. In this, the Respondent stated, inter alia, that, in line with Employment Legislation, they were entitled to calculate her holidays based on both full-time and part-time hours. The Respondent went on to confirm that they had used both methods to calculate the Complainant’s holiday accrual. In addition, I note, from the evidence, that the Respondent provided the Complainant with the internet link to the Citizens Information web page relating to the calculation of annual leave.

In this correspondence, the Respondent also confirmed that they would grant the Complainant’s request for three weeks annual leave but that only 13.5 days would be paid. The Complainant replied by return advising that she should be taking leave from 4 to 24 September. In addition, the Complainant stated that she did not believe the manner in which the Respondent calculated her entitlements was correct but she would leave that matter to be discussed when she returned to work following her leave.

In an immediate reply, the Respondent indicated that they stood over their method of calculation and also pointed out that, as a gesture of goodwill, they had agreed to extend the Complainant’s leave by five days – 3.5 of which was being paid and 1.5 unpaid. According to the Respondent’s letter, the offer of the additional five days was conditional on the Complainant accepting their calculation of 13.5 days to be correct and that would be the end of the matter.

Taking all of the above into consideration, I can only conclude that the Respondent’s handling of the Complainant’s annual leave request was balanced and fair in the circumstances. Section 20 (1) of the Organisation of Working Time Act, 1997, states, inter alia, that:“The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements.. “.

In that context and against a background where the Complainant was requesting three weeks annual leave to commence one week after she returned to work following a five-month absence on sick leave, it is not unreasonable that the Respondent might need to take some time to consider the implications of the request on the business, with particular reference to the rostering of staff, before responding to the Complainant.

The evidence shows that as part of their general consideration of the Complainant’s return to work and her request for annual leave, the Respondent sought to meet with the Complainant. The Respondent offered a meeting on 25 August, which was just three working days after they received notification of the Complainant’s return to work and annual leave request. However, due to the Complainant’s unavailability on 25 August, the meeting did not take place until 27 August.

At the meeting on 27 August, the Respondent approved the Complainant’s annual leave request. In view of the timelines, as set out above, I find that, in all the circumstances, the Respondent dealt with the Complainant’s request for annual leave in an efficient, timely and accommodating manner.

Consequently, taking all of the above into consideration, I find that the Complainant’s contention, that the Respondent’s conduct regarding her holiday request and the manner in which her entitlements were calculated provided justifiable grounds for submitting her resignation, is not credible.

In addition, I find the Complainant’s contention in relation to the issuing of her P45 also lacks credibility. The evidence clearly shows that the Complainant requested holiday paid to be paid over a three week period and, as a result, the Respondent was not in a position to issue the P45 until the end of that period. In any event, it is noted that the issue in relation to the P45 relates to a period after the Complainant had tendered her resignation and, therefore, cannot be considered as post-hoc justification for an earlier decision.

It is also noted that, in general, the Complainant appears to also use argument gleaned from submissions made by the Respondent in response to her complaint to the WRC and/or during the adjudication process, as justification for her decision to resign. Clearly, such argument cannot be considered as relevant or admissible as justification for her decision to resign from her employment. The Complainant took the decision to resign on 22 September 2017, therefore only factors in existence at that point in time can be considered as relevant to or influential in the making of that decision.

Having carefully considered all the evidence adduced and in light of the findings set out above, I   conclude that the Complainant has failed to satisfy the Breach of Contract test which is required to   successfully execute a claim for constructive dismissal.

In addition, I also conclude that the Complainant has failed to satisfy the Reasonableness test, in relation to the Respondent’s actions and behaviours. This test requires the Complainant to demonstrate that the Respondent’s acted in such an unreasonable manner that she was left with no option but to resign her employment. Having carefully reviewed and considered all of the evidence, I conclude that the Respondent has behaved in a reasonable, balanced and accommodating manner, sometimes in the face of what might be considered as adversarial behaviour from the Complainant.

This view is based on a number of factors including the Respondent’s conciliatory and resolution focused approach at the first WRC Hearing, where an agreement was reached on the day and, in addition, the Respondent paid financial compensation to the Complainant as well as committing to rectifying some of the procedural deficiencies which had been highlighted by that complaint. In particular, the Respondent committed to providing the Complainant with the Contract of Employment at the first opportunity, which was her return to work following the sick leave.

In addition, I find that the Respondent’s engagement with the Complainant in relation to her return to work was also reasoned, balanced and accommodating. This was, in my view, in a context where the Complainant adopted a less than conciliatory approach with regard to the demands and/or preconditions she placed in relation to her return to work.

Finally, in this regard, I note that the Respondent’s conciliatory approach extended beyond the submission by the Complainant of her resignation. In a letter dated 25 September 2017, the Respondent provided a detailed and comprehensive response to all of the issues raised in the Complainant’s letter of resignation of 22 September 2019.

Among the items clearly set out in the Respondent’s letter of 25 September was their Grievance Policy and it was clear that, notwithstanding the fact that the Complainant had already submitted her resignation, she could, if she so chose, utilise this process in order to have her issues addressed.

At the conclusion of their letter of 25 September 2017, the Respondent stated as follows:

“None of the above issues or misunderstandings are beyond discussion and once again, we would suggest you take advantage of the grievance procedure outlined above. [We] would be more than happy to sit down with you and try and resolve any concerns you have. We would be delighted to have you back at the restaurant”.

Taking all of the findings, set out above, and, in particular, in the light of the above quoted paragraph from the Respondent’s letter, I find that the Complainant’s claim that she had no other option but to resign to lack credibility and to be not well-founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my findings in relation to each element of the Complainant’s complaints as follows:

Complaint under Terms of Employment (Information) Act, 1994 – (reference CA-00017603-001)

I find that this element of the Complainant’s complaint, under the Terms of Employment (Information) Act, 1994, is not well founded and is therefore rejected.

Complaint under Terms of Employment (Information) Act, 1994 – (reference CA-00017603-002)

I find that this element of the Complainant’s complaint under the Terms of Employment (Information) Act, 1994, is not well founded and is therefore rejected.

Complaint under Unfair Dismissals Act, 1977 - (reference CA-00017603-003)

I find that the Complainant’s complaint of constructive dismissal under the Unfair Dismissals Act, 1977, is not well founded and is therefore rejected.

Terms of Employment (Information) Act

Contract of Employment

Terms and Conditions of Employment

Unfair Dismissal Act

Constructive Dismissal