Complainant

Respondent

Anonymised Parties

An Employee

A Large Retailer

Representatives

Desmond Fitzgerald Desmond Fitzgerald & Co.

Ronnie Lawless IBEC West

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-00018929-001

03/05/2018

Having initially worked for the Respondent, a large grocery retailer, for a 17-month period in 2006/2007, the Complainant commenced her second extended employment with the Respondent on 10 November 2007.

Having returned from maternity leave in February 2017, the Complainant submitted a letter of resignation, dated 6 November 2017 to the Respondent and, on completion of two weeks’ notice, her employment ceased on 20 November 2017.

The Complainant submitted a complaint of constructive dismissal under the Unfair Dismissals Act, 1977, to the Workplace Relations Commission on 3 May 2018.

The Complainant submitted that she worked for the Respondent, initially from 2007, then from 2009 until 20 November 2017, when she had to leave her employment. She further stated that she was happy with her work and believed that she was a well-regarded employee. However, according to the Complainant’s submission, when she became the mother of three small children, within a four year period, she could not continue to work a 30 hour Night Shift, as she had done previously.

According to the Complainant’s submission, she had agreed temporary alterations to her working hours to enable her to balance the rearing of her young children with continued employment with the Respondent. The Complainant submitted that the then Human Resources Manager (Ms A) agreed a work schedule consisting of 12 hours a week over three nights. However, the Complainant submitted that Ms A was then transferred to another branch and a new Human Resources Manager (Mr B) took over around August 2017.

The Complainant submitted that, from the outset, the arrangement she had agreed with Ms A, was made to appear invalid by Mr B. According to the Complainant’s submission, she was told that she had no option but to revert to her previous work schedule. The Complainant stated that she pleaded with Mr B and informed him that she could adapt to working longer hours by working later into the early mornings, as starting earlier in the night shift would be extremely disruptive for her three young children. The Complainant further stated that she could have worked to 10:00am, over three shifts, thereby working a total of 18 hours per week.

However, according to the Complainant, the Respondent, as represented by Mr B, showed no willingness to assist her to find a way to continue to work. The Complainant further submitted that Mr B did not engage meaningfully with her or show any real respect as an employee. In support of this, the Complainant referred to an occasion in September 2017, after a meeting in relation to hours had been planned, where Mr B summoned her to the meeting by saying “You, upstairs”.

According to the Complainant’s submission, she felt stressed from the pressure of the situation. She further stated that she went on sick leave after consulting her GP. The Complainant submitted that, because of the hard-line attitude being shown towards her, she attempted to resign in a letter, dated 6 November 2017, with her resignation to take effect on 20 November 2017.

However, the Complainant stated that she received a letter, dated 15 November 2017 from Mr B, on behalf of the Respondent, stating that her resignation could not be accepted. The Complainant further submitted that Mr B stated, in the letter, that he wished to meet with her in the context of what he described as the Respondent’s “comprehensive grievance procedure”.

In her submission, the Complainant stated that Mr B met her on 20 November 2017, but instead of inviting her to a meeting in his office, he met her at the Customer Service desk in the store. The Complainant further submitted that Mr B made some short remark to the effect that he understood if she couldn’t work the hours that were on offer. The Complainant stated that Mr B took her keys, uniform and privilege card and went off without even a handshake or goodbye.

The Complainant submitted that, Mr B did not, at any point, act in accordance with his letter of 15 November 2017. The Complainant further submitted that Mr B made no effort to negotiate or compromise or even talk to her. According to the Complainant, when she made reference to his letter of 15 November 2017, he just responded by saying that he had to send that letter.

According to the Complainant’s submission, she feels that she was pushed out of the company and, that if a proper grievance and human relations procedures had been followed, she would still be working for the Respondent.

In addition, the Complainant submitted that, to make matters worse, she had no idea on 20 November 2017 that there was a type of redundancy programme available to employees who wished to avail of it. According to the Complainant’s evidence, she only became aware of this when told later by some of her ex-colleagues, who had recently secured redundancy payments. The Complainant further submitted that, given that the redundancy programme came early in January 2018, it is impossible for her to accept the Mr B was unaware of this program when he was talking to her at all times before she resigned.

In conclusion, the Complainant submitted that she was constructively dismissed and she believes that Mr B’s letter of 15 November 2017 is proof of this. In addition, the Complainant stated that it is still in doubt as to whether she formally resigned. She stated that if the Respondent had acted in good faith by listening to her concerns and feelings of frustration, she would not have left, what she described as, likeable and well-paid employment. However, by not listening to her proposals in relation to working arrangements, which were submitted in good faith, the Respondent left her with no option but to resign.

The Respondent refuted the Complainant’s claim for constructive dismissal on the basis that she terminated her contract voluntarily, without recourse to the long-established internal Grievance Procedures. The Respondent then went on to make the following submissions in support of their position.

Background to the complaint:

The Respondent submitted that the Complainant commenced employment, initially on 11 February 2006 before voluntarily leaving on 27 July 2007. It is further submitted that the Complainant was rehired on 10 November 2007 and remained in the Respondent’s employment until her resignation on 20 November 2017.

According to the Respondent’s submission, following her return to work after maternity leave in February 2017, the Complainant requested and was granted a temporary reduction in her hours of work. It was stated that it was agreed, with her Personnel Manager at the time (Ms A), that the Complainant would work 3x4 hour shifts on set nights from 4:00am to 8:00am. The Complainant’s work involved the replenishment of stock.

The Respondent submitted that, during summer of 2017, management carried out a review of the Night Replenishment Team. It was stated that, as part of this, the newly appointed Personnel Manager (Mr B) was requested, by line management, to review the Complainant’s temporary working arrangement, which was only intended to be in place for a short period of time to support her after she returned to work from maternity leave.

It was submitted on behalf of the Respondent, that working arrangements are not set by specific hours or days; instead employees work to their contract band and work fully flexible five days over seven. It was further stated that rosters are distributed up to 4 weeks in advance to allow employees to plan and prepare around the rosters. It was further submitted that the Complainant’s working arrangement of working only 12 hours, at set times, was completely at odds with the working arrangements of the other employees in the store who all work fully flexible five days over seven rosters.

The Respondent submitted evidence in relation to 3 meetings, which took place on 12, 19 and 30 September 2017, with the Complainant, to discuss her options, with regard to working hours.   It was submitted that during these meetings, the Complainant stated she was unable to work more hours on nights, but was willing to move to s day shift, provided she got set hours and six days. The Respondent submitted that it could not facilitate this request. However, they did offer the Complainant 3x6 hour shifts on the same three nights she was already working, but she would have to start earlier than 4:00am. According to Respondent this option was not acceptable to the Complainant.

According to the Respondent’s evidence, at the conclusion of the above meetings, the Complainant’s position was that she was unable to work any of the suggested working patterns put forward by management. Consequently, as no agreement could be reached, the Respondent advised the Complainant that she would receive a letter giving her six weeks’ notice of the need to return to her former contracted hours.

The Respondent submitted that, following the last meeting on 30 September 2017, the Complainant was on annual leave from 1 October to 15 October 2017. However, prior to return, the Complainant submitted a doctor’s certificate dated 11 October 2017, covering a four-week period.

According to the Respondent’s evidence, the Complainant submitted her resignation letter, dated 6 November 2017. The Respondent stated that the Personnel Manager, Mr B, responded to the Complainant on 15 November 2017, in which he stated, inter alia, that, in the Respondent’s view, the Complainant’s work-related issues could be resolved through utilisation of the Company/Union grievance policy or their Dignity at Work policy. It is further submitted that Mr B suggested a meeting on 20 November 2017, to discuss matters further.

The Respondent stated in evidence that the Complainant did not contact Mr B to confirm her attendance at the proposed meeting. However, it was submitted that the Complainant attended the store on 20 November 2017 and requested to see Mr B. The Respondent further stated that Mr B was paged using the internal call system and he came to the Customer Service desk where he met the Complainant.

According to Mr B’s evidence, he was surprised to see the Complainant as she had not confirmed to him that she would be attending the meeting on that date. It was Mr B’s evidence that the Complainant was accompanied by her two children on the date in question. It was further stated that the Complainant informed Mr B that she did, in fact, not want to have a meeting with him. The evidence further suggests that the Complainant returned her privilege card, handed Mr B her uniform in a bag and requested her P 45.

It was further submitted that Mr B was taken aback at the Complainant’s behaviour but, on the basis of her demeanour on the day and the act of returning her company property, he determined that the Complainant was not interested in pursuing the company’s internal mechanisms to resolve her issues and return to work. It was submitted that Mr B reluctantly processed the Complainant’s resignation with a termination date of 20 November 2017.

Respondent’s position:

It was submitted on behalf of the Respondent that they have a comprehensive Grievance Procedure, which is extensively used by staff to resolve any issue that might arise on a day-to-day basis. It was submitted that the Complainant did not raise a formal grievance in relation to her issues.

However, it was submitted that the Complainant, through her solicitor, wrote to the Respondent on 13 February 2018, some 12 weeks after her resignation, to state that there was no willingness on the part of Mr B to assist her. According Respondent’s submission, the allegation contained in the letter of 13 February 2018 is not borne out by the facts. In support of this view, the Respondent referenced the meetings of 12, 19 and 30 September 2017 and the letter of 15 November 2017 all of which clearly advised the Complainant of her right to raise a grievance.

In addition, the Respondent submitted that, their letter of 7 March 2018 (in response to the letter from the Complainant’s solicitor) clearly outlines that the company were still willing to discuss the resignation and offered a further meeting.

According to the Respondent’s submission, the Complainant states that Mr B took her keys and uniform and left without a handshake or goodbye. The Respondent submits that their version of events is totally at variance with that account and will say that the Complainant advised Mr B that she did not want to attend a meeting and handed over her privilege card and uniform, as well as asking for her P45.

In their submission, the Respondent made reference to the Complainant’s claim that she was unaware of a redundancy package that was on offer to colleagues in the store. In response, the Respondent submitted that, at the time of her resignation, there was no redundancy package available.

However, on 15 January 2018, the Respondent announced a partial reduction in the night crew at the store where the Complainant worked. It was further submitted that, in line with existing arrangements in the company, when a night crew was partly reduced, employees affected are given options. In relation to the specific scenario in January 2018, the Respondent submitted that employees were given the option to (a) remain on nights, (b) transfer to work on days or (c) indicate that neither of those options were suitable/available that a redundancy package may be available.

In this regard, the Respondent submitted that it is their position that the protection of employment is paramount and that redundancy is only considered as a last resort. The Respondent further submitted that in their view, the timing of the letter from the Complainant’s solicitor was purely opportunistic, coming shortly after the announcement of the partial reduction in the night crew but 12 weeks after she had resigned.

Relevant Legislation and Case Law:

In the submission, the Respondent made specific reference to the definition of dismissal as contained in Section 1 of the Unfair Dismissal Act, 1977. It was submitted that, in the light of this definition and established principles adopted by Tribunals and the Courts, there exists a burden on the employee to demonstrate that:

“the employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign”.

The Respondent submitted that it is only when either of the above criteria have been met the employee is entitled to terminate the contract of employment. The Respondent further submitted that in the within case, the Complainant has met neither criteria.

In support of their position in this regard, the Respondent referred to the following case law: McCormack v Dunnes Stores [UD1421/2008], Keogh v JTM Jumpstarters Limited [UD 1090/2008], Conway v Ulster Bank [UD 474/1981] and Travers v MBNA [UD 720/2006].

In summary, the Respondent submitted that the tribunals have reiterated the importance of ensuring that all grievance procedures are exhausted by the employee before their decision to resign is deemed reasonable in all circumstances.

Conclusion:

In conclusion, the Respondent restated their position that the Complainant had not utilised the grievance procedures before or after the resignation when she was requested to do so.   Accordingly, the Respondent submits that it is clear, regardless of the efforts they went to in addressing her resignation, the Complainant had already made up of mind that she was leaving and this was clarified by her actions in returning her uniform and privilege card to management on 20 November 2017.

The Respondent further submits that it is clear the Complainant had no intention of ever returning to work or meaningfully engaging in order to bring whatever issues she may have had at that point to a satisfactory conclusion.

It is the Respondent’s position that the Complainant’s failure to lodge a grievance before resigning proves fatal to her case, which should, therefore, be dismissed. The Respondent submitted that they did everything in their power to try to resolve the issue being raised by the claimant, so much so that, initially, they did not accept her letter of resignation. It was only when the Complainant stated that she did not want a further meeting and did not submit a formal grievance that they processed her resignation.

In conclusion, the Respondent submitted that as the Complainant has failed to establish any case of unfair treatment or penalisation, her claim for constructive dismissal must be rejected in full.

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 6 November 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 6 November 2017 arose from, what she considered to be the Respondent’s failure to provide her with the work/shift pattern that she was seeking that would accommodate her childminding requirements and her desire to continue working with the Respondent.

Therefore, in order to fully assess the claim of constructive dismissal it was necessary to consider, in detail, the Respondent’s response to the Complainant’s request for changes to her work schedule or shift pattern.

The evidence adduced, shows that the Complainant was a member of the night crew and was scheduled, as per her terms and conditions of employment, to work 30 – 35 hours per week in a 5 over 7 shift pattern. The Complainant worked this pattern from the commencement of her second employment stint with the Respondent in 2009 to her return from Maternity Leave in February 2017, following the birth of her third child. On the basis that the Complainant had, by that stage, three children under the age of four years she sought to have her work/shift pattern amended.

It is clear from the evidence that, following discussions with the then Personnel Manager, Ms A, a temporary arrangement was put in place whereby the Complainant worked 12 hours a week over three set days. On this shift pattern the Complainant worked from 4:00am to 8:00am. It is clear from the evidence presented at the Hearing by Ms A that the arrangement put in place on the Complainant’s return to work was always intended to be temporary. According to Ms A, the Complainant had expressed some concerns about coming back to work on nights and was now living further away from her work. According to the evidence submitted, in order to   support her return to work, a temporary arrangement, to bring the Complainant back on reduced hours was put in place.

From the evidence adduced, it is clear that, after a period of time, the Complainant was approached by her line manager with a view to returning to her normal work pattern. According to the evidence submitted, the Complainant’s temporary work pattern meant she was working different hours to the rest of her colleagues on the replenishment team and that this was impacting on the completion of duties allocated to the night team. The evidence suggests that discussions between the Complainant and three members of the management team, including the Grocery Manager, the Night Manager and the Deputy Store Manager failed to produce a satisfactory solution to the Complainant’s situation.

As a result, the Deputy Store Manager requested the then Personnel Manager (Mr B) to review the temporary working arrangements in place for the Complainant as it was not in line with normal night crew working hours. It is clear from the evidence presented, that   Mr B held three meetings with the Complainant during September 2017 to discuss options around her working arrangements.

According to the evidence submitted, arising from these meetings, management proposed a number of options in order to address the Complainant’s situation. These options included:

(1) a six-hour night shift (from 2:00am to 8:00am) on the same days as the Complainant was working as part of the temporary arrangement. However, the Complainant found the earlier start unacceptable. and

(2) a move to a day shift -   the Complainant was willing to move to days on the basis that she could be guaranteed set hours and days.   However, management were not in a position to guarantee this as it would have led to relativity issues with other employees.

The Complainant was on annual leave for the two weeks following her meetings with Mr B on 30 September 2017.   While on annual leave, the Complainant submitted a doctors certificate dated 11 October 2017, covering a four week period of absence. By letter dated 6 November 2017, the date on which her sick leave certificate was due to expire, the Complainant submitted her resignation with effect from 20 November 2017.

Having carefully and thoroughly considered all the evidence submitted in relation to the matter of the   Complainant’s working arrangements following her return to work in 2017, I am satisfied that the Respondent’s efforts to resolve the matter and to provide the Complainant with an arrangement that would go some way towards meeting her preferences, while at the same time meeting the obvious requirements of the business, were reasonable in the circumstances. I find no evidence that would support the view that management were unreasonable to the extent that it would provide the Complainant with the basis for a claim of constructive dismissal.

In addition, I find no evidence to support a view that the Respondent’s actions/behaviour in any way constitute a breach of contract. In my view, the Respondent was acting correctly when, on the Complainant’s return from maternity leave, they sought to place her on the exact same contractual terms that she had prior to her leave.

Taking all of the above into consideration, I am satisfied that the Respondent did not breach the Complainant’s contract of employment and in trying to accommodate her changed circumstances on return from maternity leave, they were both accommodating and reasonable. Consequently, I find that, in this regard, the Respondent has passed both the contract and reasonableness test for constructive dismissal.

Finally, I find that the Complainant has not complied with the requirement to exhaust all of the available internal procedures available before taking the decision to terminate her employment. In her evidence supporting her complaint, the Complainant appeared to query the genuineness of the Respondent’s procedures and/or their willingness to engage in same.

Having carefully considered the evidence presented in this regard, I took particular note of the Respondent’s letter, dated 15 November 2017, which issued to the Complainant in response to her resignation letter. In this correspondence, Mr B advises the Complainant that the Respondent was not willing to accept her resignation at that stage because: (a) there was a comprehensive grievance procedure in place to deal with situations where employees felt they were being treated unfairly and (b) they were of the view that “any work related issue you have can be resolved through utilising the Company/Union grievance policy”. The letter concluded by proposing a meeting for 20 November 2017 to discuss the matter further.

The evidence clearly shows that, not having received any confirmation from the Complainant that she would attend the meeting, Mr B was under the impression that she would not be attending. However, the Complainant did present herself at the store on 20 November 2017, at the appointed time. The evidence presented shows that the Complainant was accompanied by her children when she attended the store on that morning. In addition, the Complainant had brought company property, including her privilege card and uniform, for return to her employer.

It was clear from the Complainant’s evidence at the Hearing that she was upset by and dissatisfied with Mr B’s behaviour on the day and, in particular, the fact that he did not take her to his office to meet with her. While I note the Complainant’s bona fides in this regard, I am of the view that the circumstances in which this “meeting” was taking place made it difficult for a meaningful engagement to have taken place.

In addition, having carefully considered the evidence put forward, there is clear indication that the Complainant’s purpose in attending at the store on that day was more to confirm her resignation, by returning company property, than it was to genuinely seek to reopen negotiations with regard to working arrangements.   The submission made on behalf of the Respondent clearly suggests that their assessment of the Complainant’s behaviour, during her interaction with Mr B on 20 November 2017, was that she was not interested in engaging in meaningful discussion with regard to her situation.

This was further confirmed by the Complainant’s evidence at the Hearing when she stated that she clearly ruled out seeking her Trade Union’s assistance in having her situation resolved.

However, notwithstanding what did/did not or what should/should not have happened at the meeting on 20 November 2017, in their letter of 7 March 2018, in response to a letter of 13 February 2018 from the Complainant’s solicitor, the Respondent offered to arrange a meeting in the event that the Complainant was willing to discuss her resignation in a meaningful manner. There is no evidence to suggest that the Complainant availed of this final opportunity to have her situation addressed.

Consequently, taking all of the above into consideration and in a context where the Respondent occasioned no breach of the Respondent’s contract of employment and where they behaved in a reasonable and accommodating manner, both before and after the Complainant tendered her resignation, I find that the Complainant’s claim for constructive dismissal, on the basis that she had no option but to resign her employment with the Respondent, is not well founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find the Complainant’s claim for constructive dismissal under the Unfair Dismissal Act, 1977, is not well founded and is therefore rejected.

Unfair Dismissal

Constructive Dismissal