Complainant

Respondent

Anonymised Parties

A Supervising Pharmacist

A Retail Pharmacy Chain

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-00017274-001

05/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00017274-002

05/02/2018

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

CA-00017274-003

05/02/2018

The Complainant, a pharmacist, commenced employment with the Respondent, a retail pharmacy chain, on 6 November 2007, in the role of a Pharmacist. At the time of his resignation on 13 October 2017, the Complainant held the position of Supervising Pharmacist.

The Complainant submitted a complaint to the Workplace Relations Commission on 5 February 2018. The complaint consisted of the following individual claims:

1.       Under complaint reference CA-00017274-001: a complaint of Constructive Dismissal under Section 8 of the Unfair Dismissal of Act, 1977.

2.       Under complaint reference CA-00017274-002 for: a complaint of penalisation under Schedule 3 of the Employees (Provision of Information and Consultation) Act, 2006.

3.       Under complaint reference CA-00017274-003: a complaint in relation to rest breaks under Section 27 of the Organisation of Working Time Act, 1997.

An Oral Hearing to consider the Complainant’s complaints, as set out above, took place on 28 June 2018, before a different Adjudication Officer.   Before the Hearing got underway, the Complainant made a request that the Adjudication Officer would recuse themselves on the basis of a potential conflict of interest. Consequently, the Hearing was adjourned to allow the Adjudication Officer to consider the request. While the objection was subsequently withdrawn by the Complainant, the Adjudication Officer had already recused themselves and the case was, therefore, delegated to me to conduct a de novo investigation of the Complainant’s complaints. Oral Hearings for this purpose were conducted on 4 October 2018, 28 November 2018 and 9 September 2019.

CA-00017274-001 (Constructive Dismissal):

Basis for the complaint:

The Complainant alleges that he was forced to resign his employment as a Supervising Pharmacist with the Respondent for the following reasons:

1.       He was prevented by the Respondent from fulfilling his duties and obligations as a Supervising Pharmacist in compliance with the Pharmacy Act 2007 (and the Memorandum of Advice as approved by the Council of the Pharmaceutical Society of Ireland, dated 10 February 2011)

2.       He was exposed to an excessive workload and unsafe work practices and work premises contrary to Safety, Health and Welfare and the regulation amendments made thereunder.

3.       He was subjected to a workload with accompanying concerns and anxiety regarding resources at work and safety issues.

4.       He was subjected to unrealistic and inappropriate sales targets (to include prescription medication) and was treated as a salesman rather than a professional pharmacist exercising a supervisory role pursuant to the Pharmacy Act 2007.

5.       He was not offered breaks in accordance with his entitlement under the Organisation of Working Time Act, 1997.

6.       He was required to attend incessant meetings with his manager in the 10 months leading up to his forced resignation dealing with matters unrelated to his work as a Supervising Pharmacist.

7.       He was subjected to ongoing victimisation arising out of assistance given to a colleague pharmacist at an Employment Appeals Tribunal Hearing.

8.       He was treated unfairly in respect of a bonus payment and was obliged to issue legal proceedings to vindicate his entitlement when the Respondent failed to deal with his grievance under Company Policy.

9.       The work practices which were forced on the Complainant by the Respondent necessitated him seeking medical and psychological assistance.

10.   His performance appraisal rating was unilaterally and unfairly downgraded.

Timeframe leading up to his resignation:

According to the Complainant’s submission, he was exposed to a chaotic situation on his return to work on Tuesday, 2 October 2017, the previous weekend having been his rostered weekend off. The Complainant submitted that he found the situation he returned to utterly incomprehensible and inexcusable.

According to the Complainant’s evidence, an agency locum pharmacist, who was a hospital pharmacist, with little community experience, had covered over the weekend. In addition, the Complainant submitted that the agency pharmacist was supported by a dispenser, who had just commenced her training. According to the Complainant, there had been limited counter assistants, store Manager or Under Manager and no support pharmacist in place.

The Complainant submitted that this resulted in essential services being suspended for three days, with the shop not being in a position to provide flu vaccination and other such services, over the weekend. According to the Complainant, on his return on the Tuesday, he was required to perform 12 flu vaccinations. In addition, the Complainant submitted that administrative errors were made over the three days. He also contended that, in his belief, the disorganisation and poor service endanger the health and safety of the public.

According to the Complainant’s submission, this was another example of how the Respondent allowed commercial interests take priority over staff and public safety. The Complainant submitted that, as a result, as the Supervising Pharmacist under the 2007 Act, he could no longer stand over what happened, on an ongoing basis. The Complainant further submitted that his concerns were well documented over a protracted period of time both to the Respondent and to the Pharmaceutical Society of Ireland.

The Complainant stated in his evidence that, as a matter of conscience and ethics, he could no longer continue in his role. According to the Complainant, prior complaints went unheeded. He further contended that his line manager, who he claims was inexperienced and completely out of his depth, displayed mood swings. The Complainant also contended that his line manager altered his performance appraisal rating, without justification.

According to the Complainant’s submission, the cumulative effect of all matters left him at his wit’s end and with no option but to terminate his employment forthwith. The Complainant submitted that, in February 2017, he had threatened to resign, but was talked out of it on that occasion. According to the Complainant, he had to take a week off work arising from the stress of the situation on 7 February 2017. The Complainant further submitted that, by October 2017, he had no choice, for his own and his patients’ safety and well-being but to resign after in excess of 11 years loyal and dedicated service.

The Complainant submitted that since, from around May 2015, he had been under severe pressure and stress at work. According to the Complainant, this pressure became unbearable and caused him to suffer ongoing occupational stress injury, including psychological and emotional distress and depression. According to the Complainant, the Respondent failed to honour the primary role of the pharmacist as one who insures the maintenance and improvement of health.

Supporting submission made by the Complainant:

The Complainant made the following submission in support of his complaint of constructive dismissal as set out above:

a)       Lack of a Dispenser

According to the Complainant’s submission, he was not provided with a Dispenser when the lady (Ms A) who was carrying out the function left and was not replaced. The Complainant also submitted that a second dispenser (Ms B) also left and was not replaced.

The Complainant submitted that the non-availability of a Dispenser meant that he was required to self-check medicines being dispensed. According to the Complainant, this was contrary to the Respondent’s operating procedures and which, therefore, created, an employer forced, unsafe work practices, which, in turn, heightened the risk of a dispensing error and increased the stress and strain upon the Complainant.

According to the Complainant’s evidence he complained the matter, on a daily basis, to his line manager, the Store Manager (Mr C). According to the Complainant he provided Mr C with reports about dispensing errors that had occurred in Northern Ireland leading to the death of a patient and another patient in the UK. The Complainant also made reference to a BBC Panorama programme, where the Respondent’s management methods and staff ratios were called into question.

The Complainant submitted that, as a Supervising Pharmacist and pursuant to the Act, it was his responsibility to ensure that there was sufficient professional support staff to appropriately discharge his professional and statutory duties and responsibilities. According to the Complainant, he was not able to comply with the legislation because of lack of authority to do so pursuant to the Respondent’s management model. According to the Complainant’s submission, when all of the Respondent’s management practices are combined it was obvious that they were not conducive to either patient or employee health. The Complainant contended that management’s overall goal was one of sales targets and maximising profitability as opposed to ensuring patient, public and employee safety and care.

The Complainant further contended that the management model left him in an impossible situation trying to balance his statutory functions and duties in an environment deliberately constructed by the Respondent to ensure that it was impossible for him to do so

According to the Complainant’s submission, he made several reports to the Respondent’s Clinical Governance Pharmacist (Ms D), about the inadequate work resources at his disposal.   The Complainant submitted that, as a result of these reports, Ms D contacted Mr C, the Store Manager, regarding the non-replacement of the Dispenser, who had been absent from work for many months. According to the Complainant, during one meeting where he complained about the lack of appropriate staff, his line manager, Mr C, contacted Ms D on the matter.   The Complainant submitted that Ms D called Mr C back and, to his astonishment, he was asked to leave the room, while they both discussed his concerns in relation to staffing issues.

b)      Harassment

The Complainant submitted that he was subjected to many different incidents of bullying and harassment. In support of this contention, the Complainant submitted that he was required to attend meetings with his manager on 2 to 3 occasions per week over a five-month period to discuss his performance. According to the Complainant, this was highly irregular as such meetings would normally take place at a frequency of perhaps 2/3 per annum. According to the Complainant’s submission, the nature of the profession requires total dedication and concentration on the pharmacy floor and, as a result of the ongoing harassment in attending such meetings he was prevented from carrying out his expected duties.

The Complainant submitted that his manager informed him that the company deemed him to be “disloyal” because he had assisted another pharmacist in an Employment Appeals Tribunal hearing.

The Complainant also submitted that the Respondent monitored his personal Facebook account and when, on one occasion, he commented on a Guardian Newspaper article about one of the Respondent’s Pharmacists in the UK, the Respondent threatened to terminate his employment because of the Facebook article. The Respondent further submitted that the Respondent threatened to have his work colleagues disciplined because they liked the article on Facebook. According to the Complainant submission, this was an abuse of process by the Respondent and represented an interference in his personal rights.

According to the Complainant’s submission, he was advised by his line manager, Mr C, in February 2017, that he (the Complainant) did not have the trust or support of staff and that “nobody wants you here”. The Complainant further submitted that when he spoke to staff he found this to be utterly untrue.

Finally, under this section of his submission, the Complainant referred to an occasion when he was attending a Regional Meeting and the podium speaker stated that the Respondent was “underperforming in the over 50s age category”. According to the Complainant’s submission, he was aware that nationwide there was probably less than three pharmacists over the age of 50, including himself. Consequently, the Respondent stated that he found the speakers comment offensive and ageist in the extreme.

c)       Non-compliance with the Pharmacy Act, 2007

The Complainant submitted that the Respondent’s overall management structure, model of running its stores and overall management practice ensures that an individual pharmacist is prevented from having any managerial role or authority in the running of the store. According to the Complainant, this is contrary to the Pharmacy Legislation

In addition, the Complainant submitted that this approach ensures that the individual pharmacist is subjected to ongoing conflict with regard to his/her management expectations and their responsibility under the pharmacy legislation. The Complainant contends that the Respondent’s management style ensures that the pharmacist is prevented from carrying out his/her statutory functions.

In support of his contention in this regard, the Complainant made specific reference to the weekly meetings he was subjected to by his line manager, Mr C. According to the Complainant these meetings were to discuss his performance as opposed to his statutory obligations pursuant to the Pharmacy Act.

According to the Complainant’s submission, the Respondent was carrying on retail pharmacy business otherwise than in accordance with Section 26 of the Pharmacy Act 2007, which he further claims is an offence under Section 26 (2) of the said Act. In addition, the Complainant referred to Section 28 (b) of the Act, which requires that the Supervising Pharmacist is in full-time charge of the carrying out of the business.

The Complainant submitted that he was, at all material times, the Supervising Pharmacist at the premises in question. However, the Complainant submitted that the Respondent’s management model insists that he reports to a non-medically qualified full-time manager, who runs the store. In support of his claims under this heading, the Complainant cited various Regulations and Statutory Instruments relating to the Retail Pharmacy Business.

In conclusion, the Complainant submitted that the management structure adopted by the Respondent was designed to continuously frustrate Supervising Pharmacists from complying with their obligations under the relevant legislation. According to the Complainant’s submission, he was required to submit to sales target setting, unacceptable commercial pressures and was not permitted to have professional autonomy.

Legal Submission:

The Complainant’s representative presented detailed legal submission in support of his claim for constructive dismissal. The Complainant’s representative submitted that the Respondent’s conduct in this case had been such that the Complainant was entitled to terminate his employment in all the circumstances and, in particular, based on the grounds, as set out by the Complainant, in the basis for his complaint.

With reference to the tests, traditionally adopted by the appropriate bodies in adjudicating claims for constructive dismissal, i.e. the Contract and Reasonableness Tests,   and how these should be applied in relation to the within case, the Complainant’s legal representative cited, inter alia, the following cases: Western Excavating Ltd v Sharp [1978 I.C.R. 221], Berber v Dunnes Stores Limited [2009 E.L.R. 61], Malik v Bank of Credit and Commerce International S.A. [1997 I.C.R. 606], Lewis v Mortorworld Garages Limited [1986 I.C.R. 157], Quigley v Complex Tooling and Moulding [2005 ELR 305] and A General Operative v A Religious Society [ADJ-00002814]

While accepting that there is an onus on the Complainant to exhaust all internal avenues for dealing with his grievance, his legal representative submitted that, in this case, the extreme nature of the cumulative effect of the Respondent’s conduct and the Complainant’s previous experience of the invocation of the grievance procedure (where the Respondent ignored same necessitating the issuing of legal proceedings to specifically perform a bonus contractual entitlement) were such as to justify the Complainant’s decision not to involve the internal grievance procedure.

In conclusion, it was submitted that the Respondent exposed the Complainant to breaches of the following:

a)       The Organisation of Working Time Act 1997 and disregarded complaints re same.

b)      The Safety, Health and Welfare at Work Act, 2005, and the Regulations made thereunder.

c)       The Pharmacy Act, 2007.

d)      The Retail Pharmacy Business Regulations (SI 448 of 2008) and the Memorandum of Advice issued by the Council of the Pharmaceutical Society of Ireland.

e)      The Code of Conduct for Services issued by the PSI.

f)        Contract.

g)       Its own Grievance Procedure.

It was submitted on behalf of the Complainant that it is a basic implied term/condition of any contract of employment that an employee shall not be required under contract to work in an unlawful manner contrary to statutes or laws in place. It was further submitted that it is and expressed/implied term/condition of a Supervising Pharmacist under the 2007 Pharmacy Act, that a pharmacist shall not be required to work in an unethical manner, without sufficient rest periods and without adequate dispensing backup and shall not be required to act as a subordinate to a sales driven provider of medicinal and healthcare products.

According to the submission on behalf of the Complainant, the egregious conduct of the Respondent amounts to conduct constituting breach of contract and further amounts to unreasonable behaviour such as warranted and entitled the Complainant to resign his employment of 10 years.

CA-00017274-002 (Penalisation):

According to the Complainant’s submission, when he assisted another Pharmacist at an EAT Hearing, it led to him being victimised by the Respondent. According to the Complainant, his manager admitted to him that he was being penalised for this activity.

CA-00017274-003 (Organisation of Working Time Act):

The Complainant submitted that he was not provided with any rest breaks on any day other than on Thursdays and Fridays. The Complainant submitted that this policy was perpetrated over a period of 10 years and, as Supervising Pharmacist, he was not afforded the opportunity for a break

According to the Complainant’s submission, in the absence of appropriate support from sufficient medically qualified professional support staff, he was required to attend on the pharmacy floor for exceptionally long hours without a break. The Complainant submitted that, not been provided with sufficient break times, but he was unable to carry out his statutory functions as a Supervising Pharmacist to the best of his ability.

The Complainant submitted that he complained repeatedly to the Store Manager about the absence of sufficient breaks, however, the matter was never appropriately addressed.

Background to the Complainant’s Employment History:

A)      Dignity at Work Complaint 2016

The Respondent submitted that the Complainant commenced employment on 5 November 2007.

According to the Respondent’s evidence, on 30 September 2016, they received a bullying complaint, from a staff member (Ms A), who was the Dispenser in the store which the Complainant worked. Ms A’s complaint was against four named staff members, including the Complainant. The Respondent submitted that a formal investigation was commenced in line with company policy, during which time Ms A was temporarily transferred to another store. In Ms A’s absence, dispenser cover was provided by relief staff while in-store colleagues were trained in the role of dispenser. On 7 July 2017, the investigation issued a finding that there was insufficient evidence. It was further submitted by the Respondent, that the report findings in relation to the Complainant were that: “whilst I find the situations were not managed effectively and examples of behaviour which [would] not be acceptable for [the Respondent’s] leaders, I have found that insufficient evidence to substantiate a complaint of bullying by [the Complainant] against Ms A”.

B)      Performance Leadership 2017

According to the Respondent’s submission, their performance year runs from September to August. The Respondent identified that Mr C, the Store Manager, was responsible for assessing and managing the Complainant’s performance.

The Respondent submitted that Mr C had serious concerns regarding the Complainant’s leadership performance as related to his failure to lead the pharmacy team effectively. It was submitted that this is distinct from the Complainant’s professional competence to work as a pharmacist. According to the Respondent’s submission, throughout 2017, Mr C had a number of discussions with the Complainant advising him that he was rating at the “non-performing” performance level. The Respondent further submitted that, following these informal discussions, Mr C felt that placing the Complainant on a performance improvement plan (PIP) would help to support him improve his performance.

According to the Respondent’s submission, at a further performance review meeting, on 3 February 2017, the Complainant resigned his position. It was further submitted that, following a letter from Mr C, dated 6 February 2017, in which he requested the Complainant to reconsider his decision to resign, the Complainant withdrew his resignation.

It was submitted on behalf of the Respondent that, on 10 March 2017, Mr C issued the Complainant with a letter of concern (informal warning) for failing to re-brief members of the pharmacy team on the relevant pharmacy Standard Operating Procedures (SOP), as was required by the Pharmacy Act 2007 in a context where the Superintendent Pharmacist for the Respondent had been changed.

According to the Respondent’s submission, Mr C met with the Complainant, on 31 March 2017, to discuss his PIP and to provide him with a copy of same. The Respondent submitted that, having been given time to review the plan, the Complainant refused to engage in relation to the PIP or performance leadership discussions. The Respondent made specific reference to an interaction between the parties on 26 May 2017, when Mr C sought to raise the PIP as supportive measures to assist the Complainant’s performance, the Complainant advised that he would not be engaging with the PIP and that he fully understood the potential consequences of failing to so engage.

The Respondent submitted that, on 24 July 2017, Mr C was obligated to meet with the Complainant and another support pharmacist as they had failed to follow an SOP which required that certain controlled drugs must be checked weekly. According to the Respondent’s submission, these checks had not been carried out on two separate weeks in April and June. It was further submitted that, as a consequence, Mr C issued a letter of concern (informal warning) to both employees on 3 August 2017.

According to the Respondent’s evidence, Mr C met with the Complainant on 28 July 17 and August 2017 in relation to his performance. At the latter meeting Mr C advised the Complainant that he would be finishing the performance year with a performance rating of “not performing”.

C)      Governance and Training Support

According to the Respondent’s submission, the Complainant, in his role as Supervising Pharmacist, with responsibility for the training and development of his team. The Respondent provided a detailed submission of support and assistance which was provided to the Complainant throughout 2017. This submission made references to visits to the specific location by certain members of the Respondent’s broader Governance and Training Support team, during which the Complainant was met.

According to the Respondent’s submission, these visits/encounters included the following:

§  A visit by the Respondent’s Professional Standards and Regulatory Affairs Manager (Ms D fact) in January 2017 to discuss dispenser succession planning.

§  A visit by the Healthcare Academy Trainer (Ms E) in March 2017, during which she spoke with the Complainant who did not raise any concerns or request support from a pharmacy or patient safety perspective.

§  A further visit in April 2017, by Ms D, to discuss concerns she had in relation to the action plan prepared by the Complainant.

§  A discussion, in May 2017, in which the Complainant advised Ms C that he did not believe the pharmacy team were fully trained on the revised SOPs issued at the beginning of May 2017. According to the Respondent, the Complainant subsequently confirmed, in June 2017 that all the relevant training had taken place, namely that all current SOPs had been implemented and the training records reflected same.

§  A visit, on 19 May 2017, by Ms D and the Area Manager (Ms F), during which issues such as (a) Dispenser Resource Levels, (b) Out of Store Activities, (d) Patient Safety Culture and (d) Pharmacy Assessment System were addressed with the Complainant which.

D)      October 2017

According to the Respondent submission, the Complainant was contracted to work 40 hours per week. It is further submitted that the roster for pharmacists was based on a two-week pattern between the Complainant, as Supervising Pharmacist and the Support Pharmacist, with the pharmacists been rostered to work every second weekend.

The Respondent submitted that cover for the Supervising Pharmacist/Support Pharmacist is provided by the Respondent’s Relief Pharmacy Team, which consists of directly employed relief pharmacists who provide roster cover within the Respondent’s network. However, in circumstances where there is no direct relief pharmacist available, the Respondent engages locum pharmacists from a Pharmacist Agency, which provides specialist services to the industry nationally.

It was submitted that the Complainant was scheduled off on Sat/Sun/Monday (29/30 Sept/1 Oct) and was due to return to work on Tuesday, 2 October 2017. According to the Respondent’s submission, as the Support Pharmacist was on annual leave on the same weekend, arrangements had been made that a locum pharmacist (Mr G) would work on Saturday (29 September) and that a member of the Relief Pharmacy Team (Ms H) would work on Sunday/Monday (30 Sept/1 Oct).

According to the Respondent’s submission, Ms H took ill over that weekend, which resulted in Mr G providing cover for the full weekend, during which he was supported by a combination of Health Care Assistants and a Trainee Dispenser on the Saturday/Sunday. The Respondent further submitted that Mr C was rostered off the same weekend and the Assistant Store Manager (Ms J), who was covering for him, also took ill over the weekend. According to the Respondent, Mr C was advised of Ms H’s absence, on Monday, (1 Oct) and, as a result, he met with Mr G to discuss the weekend operations. It was submitted that Mr G did not highlight any concerns to Mr C with regard to the operation of the business over that weekend.

According to the Respondent’s submission, the Complainant tendered his resignation, by way of letter, dated 13 October 2017. The Respondent submitted that, as the Complainant’s resignation was unexpected and as he had not utilised the grievance procedures in advance of tendering same, the Respondent’s Director of Pharmacy ROI and Superintendent Pharmacist (Ms K), wrote to the complainant on 20 October 2017 asking him to reconsider his resignation and to meet with her personally, the following week, to discuss any concerns which he had.

The Respondent submitted that the Complainant emailed Ms K on 24 October 2017, declining the meeting and advising that he would not be reconsidering his resignation. According to the Respondent, Ms K responded to the Complainant on 26 October 2017, acknowledging his decision not to exhaust the internal process or to meet with her to discuss his concerns.

Response to the Complainant’s complaints:

CA-00017274-001 (Constructive Dismissal):

Preliminary Points:

Before dealing with the substantive complaint made by the Complainant, the Respondent raised a preliminary issue.

According to the submissions made on their behalf, the Respondent received a High Court personal injury summons, from the Complainant’s solicitors on 26 January 2017. It was submitted that this summons contained allegations of an alleged breach of contract and other breaches of statutory codes. According to the Respondent, the particulars of the personal injury summons are identical to the facts and alleged incidents contained in the complaint of constructive dismissal submitted to the WRC under the Unfair Dismissal Act. In addition, the Respondent submitted that, at the time of the WRC Hearing, the Complainant’s solicitors had confirmed that the personal injury proceedings are ongoing.

Based on the above, the Respondent submitted that the Adjudicator is required to consider a number of arguments. Firstly, with regard to the distinction between the two claims, the Respondent requested that the Adjudicator would consider the case of Morgan v Irish Horse Welfare Trust [2014 ELR41].   According to the Respondent’s submission, the circumstances in the aforementioned case and the within case are similar. The Respondent referred to the EAT view that the claimant in the Morgan case was making an artificial distinction between the two actions and that both actions arose from the same allegations and, as a result, adjourned the case pending the resolution of the High Court case.

Secondly, the Respondent requested that consideration be given to the facts of the claim itself, as these are important. The Respondent made specific reference to the absence of any difference between the WRC complaint and the detail of the Personal Injury Summons and cited specific examples where they consider this to be the case.

In addition, the Respondent drew attention to the reliefs claimed by the Complainant in the Personal Injury Summons. The Respondent pointed to the fact that these included loss of earnings, which were submitted as “to be ascertained”. According to the Respondent, any decision by the Adjudication Officer to ascertain loss, if any, would involve making a finding on matters also subject of the High Court claim.

According to the Respondent’s submission, given that the facts underpinning both claims are similar they should be litigated as one. In support of their argument in this regard, the Respondent made significant legal submission in which the following cases were cited: Henderson v Henderson [(1843) 3 Hare 100, 67 ER 313], Cunningham v Intel Ireland Ltd [2013 IEHC 207], Parsons v Iarnrod Eireann [1007 2 IR 523] and Culkin v Sligo County Council & Another [2017 IECA 104]

The Respondent submitted that as both sets of proceedings mirror each other, they can be combined in the High Court proceedings and the within claim under the Unfair Dismissal Act ought to be withdrawn or adjourned pending the outcome of the proceedings.

Response to substantive complaint

Notwithstanding their position in relation to the preliminary points set out above, the Respondent made a full submission in response to the Complainant’s complaint of constructive dismissal. The submission commenced with the following initial responses to the specific points submitted by the Complainant as the basis for his decision to resign from his employment and pursue a complaint of constructive dismissal:

1.       The Respondent rejected the Complainant’s claim that he was prevented from fulfilling his duties and obligations as a Supervising Pharmacist. According to the Respondent, they have a variety of Standard Operating Procedures (SOPs) in place which, when followed, provide for the operation of the pharmacy business in full compliance with the Pharmacy Act 2007 and the Retail Pharmacy Business Regulations. The clear expectation and requirement of the Respondent is that such SOPs are followed.

2.       In response to the Complainant’s allegation that he was exposed to an excessive workload and unsafe work practices, the Respondent submitted that, as no claim had been lodged under the Safety, Health and Welfare at Work Act, 2005, it is not open to the Adjudicator to consider a claim under that legislation.

3.       The Respondent rejects the Complainant’s claim relating to work overload. According to the Respondent, the Complainant was underperforming in his role and the Respondent sought to help him by engaging on a performance improvement plan, but the Complainant failed to engage in the process.

4.       The Respondent rejected the Complainant’s contention that he was subjected to unrealistic and inappropriate sales targets and that he was treated as a salesman rather than as a professional pharmacist.

5.       The Respondent rejected the Complainant’s claim that he was not afforded breaks in accordance with his entitlement under the Organisation of Working Time Act, 1997.

6.       In response to the Complainant’s claim that he was required to attend “incessant meetings” which were not required or mandated under his contract of employment, the Respondent referred again to the submissions made in relation to the overall management of the Complainant’s performance.

7.       With regard to the Complainant’s claim that he was subjected to ongoing victimisation arising out of assistance given to a colleague Pharmacist at an EAT Hearing, the Respondent rejected the said claim on the basis that the Complainant was not operating in the role of a representative, which would have provided cover for him under the appropriate legislation.

8.       In response to the Complainant’s claim that he was treated unfairly in respect of a bonus payment, the Respondent submitted that the Complainant is prohibited from using this as a basis for his complaint as a consequence of separate legal proceedings and his signing of a full and final settlement agreement in this matter.

9.       The Respondent rejected the Complainant’s claim that unlawful work practices forced on him necessitated him seeking medical and psychological assistance. According to the Respondent’s submission, this matter is before the High Court.

10.   With regard to the Complainant’s claim that his performance appraisal rating was unilaterally and unfairly downgraded, the Respondent submitted that the Complainant is prohibited from raising this matter as a basis of his within complaint, as a consequence of separate legal proceedings and his signing of a full and final settlement agreement in this matter.

The Respondent’s legal submission:

The legal submissions made on behalf of the Respondent were based on Section 1 of the Unfair Dismissal Act, 1977 (as amended), which defines dismissal in relation to an employee.

Based on the definitions contained in the above Section of the Act, the Respondent submitted that, in cases of constructive dismissal, there exists a burden on the employee to demonstrate that they were (a) entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer or (b) that the employer had acted so unreasonably as to make the continuation of the employment intolerable to the extent that it was reasonable for the employee to resign.

According to the Respondent’s submission, it is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It was further submitted by the Respondent that in their view neither criteria had been met in the within case.

With regard to criteria (a), the Respondent submitted that they operated at all times within the terms of the contract of employment between the parties and no contractual violation occurred. It was further submitted by the Respondent that they fulfilled their contractual obligations, implied and otherwise, at all times and, in light of this, they contend that the Complainant’s termination of his employment fails ,on this basis, to be a constructive dismissal.

The Respondent cited the case of Conway v Ulster Bank [UD474/1981] in support of their arguments that they had fulfilled all their contractual obligations.

With regard to criteria (b) the Respondent submitted that the matter of reasonableness applies to both the employer and the employee. In relation to their own position, the Respondent submitted that they acted fairly at all times and in accordance with their policies, best practice and appropriate conduct. In this regard, the Respondent pointed to the timelines set out above and, in particular, there are various meetings with the Complainant to address concerns as they were raised.

In addition, the Respondent submitted that, on receipt of the Complainant’s letter of resignation, they sought to have him reconsider his decision and to engage with their Director of Pharmacy ROI and Superintendent Pharmacist.

According to the Respondent’s submission, they have a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000), which they urged the Complainant to utilise, but he failed to do so. The Respondent submitted that the obligation to exhaust internal grievance procedures extends even in situations where there exists a purported breach of contract.

The Respondent cited the cases of Travers v MBNA Ireland Ltd [UD720/2006] and Fitzsimons v Mount Carmel Hospital [UD855/2007] in support of their arguments in this regard.

In conclusion, the Respondent submitted that they in no way repudiated the contract of employment but rather operated the employment relationship at all times within the parameters of the contractual relationship. In addition, the Respondent submitted that their interactions with the Complainant were, at all times, reasonable. However, they submitted that the Complainant’s actions in failing to utilise and exhaust internal grievance procedures amounted to unreasonableness on his part.

Consequently, the Respondent submitted that it is their position that the Complainant was not dismissed, constructively or otherwise, from his employment.

CA-00017274-002 (Penalisation):

Preliminary Points:

In response to the Complainant’s claim of penalisation under the Employees (Provision of Information and Consultation) Act 2006, the Respondent raised two preliminary points.

Firstly, the Respondent submitted that the Complainant was never an employee representative for the purposes of the 2006 Act. Making specific reference to Section 6 (1) of the Act, the Respondent submitted that the Complainant does not have the requisite locus standi to bring his claim.

According to the Respondent, while they afford individuals the right to be represented at grievance and disciplinary hearings by a Trade Union representative or a colleague, in line with SI 146/2000, the Complainant’s participation in an individual matter as a colleague representative does not bring him within the scope of the 2006 Act. Accordingly, the Respondent submits that the claim is misconceived under the Act and should fail.

Secondly, and without prejudice to the foregoing point, the Respondent submitted that, should it be found that the Complainant was a representative within the meaning of the Act, then they wished to draw attention to Section 13 (7) of the Act, which, according to the Respondent, means that the Complainant is estopped from receiving compensation in respect of his alleged penalisation under both the 2006 Act and the Unfair Dismissal Acts 1977 to 2005.

According to the Respondent, it is evident from the Complainant’s claim form to the WRC that his alleged penalisation was a determining factor in his decision to resign his employment. Therefore, the Respondent contends that the Complainant is seeking to rely on his alleged penalisation in furtherance of his claim for constructive dismissal. According to the Respondent submission, the Complainant cannot legally additionally claim for compensation regarding same under the 2006 legislation and, as such, his claim under that Act cannot proceed.

Response to substantive complaint

CA-00017274-003 (Organisation of Working Time Act):

Preliminary Points:

In response to the Complainant’s claim under the Organisation of Working Time Act, 1997, the Respondent again raised preliminary point.

The Respondent submitted that, once more, the Complainant’s claim under the 1997 Act overlaps with the alleged constructive dismissal claim. The Respondent submitted that, in common with the Complainant’s claim for penalisation, the Complainant refers to the Respondent’s alleged failure to provide him with rest breaks as a determining factor in his decision to resign from his employment and to submit a complaint for constructive dismissal to the WRC.

According to the Respondent, the principle of res judicata affirms that a matter cannot be adjudicated on more than once. The Respondent submits that the Complainant is seeking to receive compensation under two pieces of employment legislation, i.e. the non-receipt of rest breaks.

While accepting that Section 12 of the 1977 Act does not specifically estop the claimant from claiming under Section 12 and Schedule 3 of the Unfair Dismissal Act, the Respondent submitted that the intention of the legislature in drafting the Organisation of Working Time Act was clearly to avoid breaches of the principle of as is evidenced in the provisions relating to penalisation, contained in Section 26 (2).

CA-00017274-001 (Constructive Dismissal):

Preliminary Points:

In their submission, the Respondent made the preliminary point that, as the Complainant’s High Court proceedings for personal injury and the within claim under the Unfair Dismissals Act are based on the same set of facts, they can be combined in the High Court proceedings.

Having carefully considered the legal submissions made by and/or on behalf of the Respondent and the Complainant in this regard, I find the pre-eminent authority, in this regard, to be the judgement of Hogan J in Culkin -v- Sligo County Council & Anor. [2017 IECA 104].

In that particular case, the plaintiff lodged a complaint of discrimination with the Equality Tribunal and also lodged a personal injury claim in the High Court. The Plaintiff was unsuccessful in his case before the Tribunal but proceeded with his claim before the High Court. However, the High Court dismissed this claim on the basis of the rule in Henderson v Henderson and the doctrine of res judicata. The High Court decision was subsequently appealed to the Court of Appeal.

In that appeal decision, Hogan J. concluded that, even if the plaintiff wanted to, he could not have combined a common law claim for personal injuries along with a statutory claim for discrimination in one set of proceedings. He went on to state that, just as the Equality Tribunal had no jurisdiction to entertain the common law claim, the High Court had no first instance jurisdiction to adjudicate upon the statutory claim for discrimination, under the 1998 Act. He went on to state further that the discrimination claim and the personal injuries claim are different claims, with different time limits and different rules as to both liability and quantum.

Based on the above decision, I am satisfied that there is no impediment to my adjudication of the Complainant’s statutory claims in the within case and, therefore, that I have jurisdiction in this regard. Consequently, I reject the Respondent’s preliminary point in this regard and proceed to consider the Complainant’s substantive claim.

Substantive complaint

The Complainant is claiming constructive dismissal on the basis that he claims he was left with no option but to tender his resignation, which he submitted, to the Respondent, in a letter dated 13 October 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 Mullan v Healex Systems Ireland Limited [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 v 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”.

In the within the case, the representatives of both the Complainant and the Respondent placed significant emphasis on the application of the contract and reasonableness tests during their respective submissions. Therefore, I am satisfied that these tests hold the key to establishing the validity or otherwise of the Complainant’s claim for constructive dismissal.

In his letter of resignation of 13 October 2017, the Complainant set out the reasons for his resignation as follows:

1.       The “incessant meetings” he had with his Line Manager, over the previous number of months, on matters other than his “work as a Supervising Pharmacist”.

2.       Being prevented from fulfilling his duties and obligations as a Supervising Pharmacist in compliance with the Pharmacy Act 2007 and other Retail Pharmacy Business Regulations (as approved by the Council of the Pharmaceutical Society of Ireland)

3.       Excessive workload and unsafe premises contrary to the Safety, Health & Welfare at Work Act 2005.

4.       Absence of breaks contrary to the Organisation of Working Time Act, 1997.

5.       Ongoing victimisation arising out of his assisting a colleague Pharmacist at an Employment Appeals Tribunal hearing.

Evidence presented on behalf of the Respondent clearly demonstrates that management, in particular the line manager, Mr C, had concerns in relation to the manner in which the Complainant was performing and, as a result, had a number of discussions/meetings with him, in this regard, throughout 2017. While I note the Complainant’s evidence that, between August 2016 and January 2017, he received no indication from Mr C that there were any issues with his performance, it is clear from the evidence adduced that, by the commencement of 2017, a detailed communication process had begun with the Complainant in relation to his performance.

The evidence shows that Mr C issued the Complainant with an informal warning or “Letter of Concern” on 31 January 2017. According to Mr C’s evidence, following the issuing of this letter, a meeting took place on 3 February 2017, at which the Complainant verbally tendered his resignation. While the Complainant denied, in evidence at the Hearing, that he tendered his resignation, I find it most likely, based on the balance of probability, that he did tender his resignation at that meeting. This view is based on the existence of a letter, dated 6 February 2017, which Mr C sent to the Complainant requesting him to reconsider his verbal resignation. This letter also reminded the Complainant of both the company’s Grievance and Bullying/Harassment policies, copies of which were attached to the letter. The evidence further shows that the Complainant rescinded his verbal resignation and returned to work following a period of sick leave.

Further evidence submitted by the Respondent, clearly suggests that performance related discussions took place on 3 February, 10/23 March, 8/20 April, 26 May and 3 August 2017. When the Complainant refers, in his letter of resignation of 13 October 2017, to “incessant meetings”, he is most likely referring to this series of meetings. While it is clear from the Complainant’s evidence that he considered these meetings as “incessant”, unnecessary and interfering with his role as Supervising Pharmacist, I am satisfied from the evidence adduced that they were, on the whole, both reasonable and necessary from the Respondent’s perspective and in line with good people/performance management protocols.

Having carefully reviewed all the evidence adduced, I am satisfied that, as 2017 progressed the matter of the Complainant’s performance was clearly a significant issue for the Respondent, to the point where in, August 2017, Mr C advised the Complainant that his performance rating for the year would be “not performing” and that he would be initiating a “performance improvement plan” (PIP) for the next 12 months. However, the evidence shows that, despite indications earlier in the year that he wanted to engage with the performance improvement process, by August 2017 the Complainant was, unreasonably so in my view, refusing to engage with the process.

It is clearly not within the remit of an Adjudication Officer to usurp the role of the employer in relation to matters of performance assessment. On the contrary, it is the role of an Adjudication Officer to consider, on the evidence presented, whether the employer is dealing with the matter in a balanced and fair manner, which includes appropriate communication/engagement with the employee. Having carefully considered all of the evidence adduced in this regard, I find that the Respondent had good grounds on which to engage in performance discussions with the Complainant. While it is clear from the evidence that the Complainant did not agree with his supervisor’s assessment of his performance or the overall situation in this regard, there is nothing which suggests that the Respondent, or in particular, Mr C, was being unreasonable or unfair in the conducting of the performance related processes.

Consequently, taking all of the above into consideration, I find no evidence to suggest that, in the conducting of the Complainant’s performance management processes throughout 2017, the Respondent was in breach of either the contract or reasonableness tests, to the extent that it would have warranted the Complainant’s resignation in October 2017.

On the matter of being prevented from carrying out his duties as a Supervising Pharmacist, in line with the requirements as laid down in the Pharmacy Act 2007, it would appear, from the evidence, that the Complainant had issues in this regard on a number of levels. Firstly, he contended that the “incessant” performance related meetings throughout 2017 acted as a barrier to his conducting his role as Supervising Pharmacist. The findings, as set out above, with regard to the appropriateness and reasonableness of the performance management processes during 2017, do not, in my view, support the Complainant’s contentions in this regard.

Secondly, the Complainant made significant submission in relation to the business model operated by the Respondent and how, in his view, this was incompatible with and/or impeded the proper execution of his role as a Supervising Pharmacist, in line with the provisions of the appropriate legislation. In his evidence, the Complainant took issue with: (a) not having any management or administrative authority within the store/pharmacy, (b) having to report to the Store Manager, who was not a qualified pharmacist, (c) the policy of “turning pharmacists into salespeople” and (d) the “aggressive retail model” being implemented by the Respondent.

In support of the Complainant’s submission in this regard, the Hearing heard evidence from a Pharmacy Services and Regulation Management Consultant (Mr L). While this expert witness submitted that, in his view, sales targets for pharmacists was unprofessional and should never happen, he confirmed in his evidence to the Hearing, that he was unaware of the Respondent’s systems in this regard or their application on an individual basis.

Clearly, it is neither within my jurisdiction nor competence to comment on the pharmacy legislation referred to by the Complainant in his claim and its application within his place of work. However, based on the evidence adduced, it would appear that there were a number of options available to the Complainant in the form of a Confidential Hotline and a Whistleblowing Policy both of which were operated by the Respondent but neither of which were invoked by the Complainant.

As with the matter pertaining to pharmacy legislation, it is not within my remit or competence to pass judgement on the Respondent’s business model. However, it is clear from the evidence adduced that the business model in question applies across the Respondent’s network. In addition, that evidence also indicates that most of the stores in the Respondent’s network are managed by non-pharmacists. Consequently, while it is obvious, from the evidence, that the Complainant takes issue with this management model, I find that his contention that its application, in the store in which he worked, represented reasonable grounds for supporting a constructive dismissal claim is not well-founded.

The third issue on which the Complainant based his decision to terminate his employment with the Respondent, relates to his contention that he was required to take on an excessive workload and operate in unsafe premises, contrary to the provisions of the prevailing Health and Safety legislation. Once again, I find no evidence which would suggest that the Complainant raised these issues in any kind of a meaningful basis, prior to including it as an element justifying his decision as set out in his resignation letter of 13 October 2017.

In a context where there were a number of options open to the Complainant, both internally through the grievance procedure and externally to the WRC by means of a complaint under the Safety, Health and Welfare at Work legislation, there is no evidence that he considered either approach. Using either option would have given the Complainant the opportunity to have the matter addressed and, potentially, redress applied, without any adverse impact on his employment status. Against that background, I find it somewhat incongruous that the Complainant would then contend that he had no option but to terminate his employment.

The same logic could also be applied to the Complainant’s claim in relation to the Respondent’s failure to provide rest breaks in line with the Organisation of Working Time Act. However, as the Complainant has submitted a separate complaint under that legislation, this matter will be dealt with when later assessing that element of the complaint.

Likewise, the final element underpinning the Complainant’s termination of his employment, that of alleged penalisation under the Employees (Provision of Information & Consultation) Act, 2006, will be dealt with below, as part of the adjudication into his specific complaint under that legislation.

As already stated, the Complainant detailed five specific reasons for tendering of his resignation on 13 October 2017. However, the Complainant also makes significant reference, in his resignation letter, to the events of the week-end of 29 September/1 October 2017.   These events, clearly acted as the catalyst for the Complainant’s submission of his resignation on 13 October. Consequently, I consider it both necessary and appropriate to assess this in the overall context of the Complainant’s complaint of constructive dismissal.

The evidence shows that the Complainant was rostered off work over the weekend in question. The Respondent had put arrangements in place to cover this situation, whereby, a locum pharmacist (Mr G) from a Pharmacist Agency was scheduled to work on the Saturday (29/9) and a member of the Respondent’s own Relief Pharmacy Team (Ms H) would cover Sunday/Monday (30/9 and 1/10). However, Ms H took ill over the weekend and was unable to attend on her allocated days, with the result that Mr G covered all three days of the weekend. The evidence also shows that the Assistant Store Manager (Ms J), who was covering for the Store Manager (Mr C) that weekend, also became ill over the weekend and was unable to attend for work.

From the evidence adduced, it is clear that the Complainant was dissatisfied with this situation and in particular, what he referred to as “the chaos” he had to deal with on his return to work on Tuesday, 2 October 2017. According to the Complainant’s letter of resignation of 13 October 2017, he found the situation “utterly incomprehensible and inexcusable”.

While it might not be unreasonable to be dissatisfied and/or frustrated by the aftermath of a weekend which had been impacted by a number of unscheduled and unpredictable absences of key members of staff, I find that the Complainant’s reaction to be somewhat excessive in the circumstances. The Complainant appears to object to, inter alia, the suspension of some essential services, the occurrence of administrative errors and an increased workload for him on his return to work. However, I am of the view that any objective assessment would conclude that such outcomes would not be surprising in the context of the unpredictable nature of the events and their on impact on staffing over the weekend.

In his resignation letter, the Complainant states that: “as the Supervising Pharmacist under the 2000 Act I cannot stand over what happened that weekend”. Given the unpredictability of the events of the weekend in question, I find the Complainant’s position, as articulated in this statement, lacks a reasoned and reasonable basis. While it appears the Complainant considered those events as representative of similar occasions in the past, no evidence was presented which would indicate that the events of the weekend in question was anything other than an unfortunate confluence of unpredictable happenings. In any event, I do not accept that the events of that weekend could be construed as providing a balanced and/or reasoned basis for concluding that the actions of the Respondent could be viewed as constituting a fundamental breach of the contract or which would reasonably lead the Complainant to conclude that he had no option but to tender his resignation.

Finally, in considering the Complainant’s claim for constructive dismissal, it is necessary to consider whether or not the internal procedures were invoked prior to resignation. In his submission in this regard, the Complainant laid significant emphasis on an earlier grievance which he had initiated in relation to his performance rating and bonus for 2015. Evidence presented at the Hearing indicates that the Complainant raised a grievance in relation to Mr C’s downgrading of his performance rating.

That evidence further suggests that an investigation by an Area Manager commenced in February 2016, the outcome of which was that the Complainant’s grievance was rejected. The Complainant then appealed this decision and a new appeal investigation was undertaken. However, due to delays in the process, the Complainant initiated separate legal proceedings in this regard. This matter eventually reached conclusion when, in September 2017, the Complainant signed a confidential agreement with the Respondent, which included the payment of a settlement sum, in full and final settlement of his claims.

In his submission in relation to his claim for constructive dismissal, the Complainant contended that the Respondent’s handling of his previous grievance left him devoid of any confidence that a fresh grievance in October 2017 would have been dealt with any more appropriately. According to the Complainant , he did not have the resolve to go through a similar process again.

As the Complainant had signed a confidentiality clause in relation to the settlement reached with the Respondent, the detail of same was not available to this Hearing. However, having carefully reviewed all of the evidence presented in this regard, I am satisfied that a grievance process did take place and that the Complainant was dissatisfied with the outcome of the first stage of that process. It would appear from the evidence that delays occurred in the processing of the Complainant’s appeal of that initial finding at the first stage of the grievance process.

Based on the evidence presented, it is clear that there were delays, certainly in the latter stages of the appeal process, which prompted the Complainant to take the matter externally, by issuing legal proceedings against the Respondent. Clearly, delays in the process, which resulted in the initiation of legal proceedings, should have been avoided. However, I am not convinced that the Complainant’s experience with the previous grievance provided reasonable grounds on which to decide not to invoke them again prior to his resignation.

While it was neither reasonable nor ideal that the Complainant was forced to seek resolution of his earlier grievance through the external legal system, the evidence clearly shows that the matter was resolved between the parties to their mutual acceptance, as signified by the settlement agreement. Therefore, I believe it is not unreasonable to surmise that, had the Complainant decided to submit a second grievance, the Respondent may have learned from their previous experience and dealt with the matter in a more timely fashion, given that their tardiness on the previous occasion had clearly cost them financially.

The view that the Respondent may have dealt with the matter differently, second time round, is further underpinned by a letter, dated 20 October 2017, which the Respondent’s Director of Pharmacy and Superintendent Pharmacist (Ms K) sent to the Complainant in response to his letter of resignation of 13 October 2017. In this correspondence, Ms K requested the Complainant to reconsider his resignation decision and to meet with her: “to discuss the situation and concerns raised by you so as to allow these to be investigated”.

Given that Ms K had only recently been appointed to her role, which was the most senior pharmacist role in the Respondent’s management structure and had not been involved in the Complainant’s case up to this point, I find that his failure to at least meet with Ms K was unreasonable in all the circumstances. Ms K’s request to the Complainant to reconsider his resignation and her commitment to investigate grievances can only be construed as a real and genuine offer at that point in time. Consequently, I find that the Complainant’s failure to respond to Ms K’s invitation to meet with her and have his grievance investigated fundamentally undermines his contention that he had no other option but to tender his resignation.

Having carefully reviewed the significant amount of evidence presented both in written submission and in three days of direct evidence, I find that the Complainant’s claim for constructive dismissal is not well founded. Based on the evidence submitted, I find that the Complainant has failed to show that the actions of the Respondent constituted a fundamental breach going to the root of the contract between the parties.

Furthermore, I find that the Complainant has also failed to satisfy the burden placed on him, in his pursuit of a constructive dismissal claim, by the reasonableness test. While it is clear that the Complainant had issues with the Respondent’s business model and operating structures, it appears to me that these related more to his personal perceptions of the situation than to any general or systematic failures on behalf of the Respondent. When an individual employee’s beliefs and/or values become incongruent with those of their employer it is, on the balance of probability, most likely to lead to a parting of the ways. However, it cannot be construed that such a parting would automatically constitute a constructive dismissal within the meaning of Section 1 of the Unfair Dismissal Act 1977.

Consequently, having taken all of the above into consideration, I find that the Complainant’s claim for constructive dismissal is not well founded and his complaint in this regard is, therefore rejected.

CA-00017274-002 (Penalisation):

In their submission in response to this element of his claim, the Respondent contended that the Complainant was not acting in the role of “employee representative” as provided for under the 2006 Act. On that basis the Respondent contends that the Complainant does not have the legal basis on which to make the complaint, as submitted.

Section 13 of the Employee (Provision of Information & Consultation) Act, 2006, states as follows:

“(1) An employer shall not penalise the employees’ representative for performing his or her functions in accordance with this Act.

(2) For the purposes of this section, an employees’ representative is penalised if he or she—

(a) is dismissed or suffers any unfavourable change to his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.”

Section 6 (1) of the Act defines an “employee representative” as follows:

“(1) In this Act, “employees’ representative ” means an employee elected or appointed for the purposes of this Act”.

Having carefully considered the submissions made in this regard, I find it difficult to ascertain, with any degree of certainty, what the Complainant’s exact role was with regard to his colleague’s attendance before the EAT. While accepting that there is significant basis to the Respondent’s submissions in this regard, I conclude that, in all the circumstances, it would be reasonable to give the benefit of the doubt to the Complainant and proceed to consider the substantive complaint made in this regard.

The general standards pertaining to burden of proof in penalisation cases have emerged from a number of Labour Court cases, which considered such claims, albeit, in many cases, under different pieces of legislation. An example of such would be the case of Patrick Kelly t/a Western Installation v Girdzius [HSD081], when the Labour Court set out the burden of proof required in such circumstances as follows:

“It is clear from a plain reading of subsection (3a) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of this section. Thus it is perfectly plain that in order to succeed in the cause of action grounded on the Section a claimant must establish not only that he/she suffered a detriment of the type referred to at (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (3a).”

On the basis of the above, it is clear that a Complainant is required to establish that the detriment complained of was imposed “because of or in retaliation for” him having raised concerns in relation to the health and safety matters. This gives rise to what is commonly referred to as the “but for” test. Therefore, based on the foregoing, the Complainant, in the within case, is required to establish that he suffered an alleged detriment because he accompanied a fellow pharmacist at EAT Hearing.

It is clear from the Complainant’s submission that he considered the “ongoing victimisation arising out of my assistance to another [Respondent’s] pharmacist at an Employment Appeals Tribunal Hearing” as one of the reasons underpinning his decision to resign from his employment. However, having carefully reviewed all of the evidence adduced in this case, I find none which would support the Complainant’s claim that he suffered a detriment as a result of his attendance at the EAT Hearing with his colleague.

Notwithstanding the fact that the Complainant’s claim for constructive dismissal has been rejected, no evidence was provided which would support the claim of ongoing victimisation. Consequently, taking all of this into consideration I find that, notwithstanding there being a serious question mark over whether or not the Complainant had the required locus standi to bring his claim in the first place, there is no evidence to suggest that he suffered any detriment arising from his role in his colleague’s Hearing before the EAT. Therefore, I find that the Complainant’s claim in this regard is not well founded.

CA-00017274-003 (Organisation of Working Time Act):

Preliminary Points:

In response to the Complainant’s claim under the 1997 Act, the Respondent raised a preliminary point. They contended that, as the Complainant included the alleged failure to provide him with rest breaks as a determining factor in his constructive dismissal claim, he cannot seek to receive compensation under two pieces of employment legislation.

In view of the findings, as set out above, in relation to the Complainant’s claim for constructive dismissal, I find there is no longer a basis to the Respondent’s submission that I consider the principles of “res judicata” with regard to the alleged overlap in the claims. Consequently, I am satisfied that I have the jurisdiction to hear the substantive claim made by the Complainant, which was submitted as a separate claim under the Organisation of Working Time Act, 1997.

Substantive complaint

Section 12 of the Organisation of Working cation Act, 1997, sets out the following requirements in relation to the provision of risks and intervals at work:

“12.— (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 Complainant submitted that he had not received breaks on any day other than Thursdays and Fridays. According to the Complainant this situation existed for a period of over 10 years.   However, other than anecdotal submission, which would suggest that there was little or no opportunity to take breaks, the Complainant did not provide any detailed evidence in support of his claim in relation to dates, frequency or quantum. While I accept that the employee had responsibility to record his breaks, Section 25 of the Act places a firm responsibility on the Respondent to record working time breaks. No such record or evidence in this regard was provided by the Respondent.

In support of the Complainant’s claim in this regard, witness evidence was heard from a former colleague (Ms M), who held the position of Dispenser with the Respondent and who worked alongside the Complainant between 2011 and 2015.

In her direct evidence, Ms M stated that she was aware the Complainant did not get breaks and regularly worked through from 9:00am to 6:00pm without a break. In addition, Ms M stated that she, and some of her colleagues, would regularly bring coffee/food to the Complainant so that he could take his mid-morning/lunch break in the dispensary. In concluding her evidence in this regard, Ms M stated that during very busy periods, particularly in the absence of a Dispenser, it was difficult to organise the service in such a way that the Complainant could take his breaks.

Have carefully considered the Complainant’s claim in this regard and taking into account the witness evidence of Ms M, combined with the Respondent’s failings with regard to their responsibilities under Section 25 of the Act, I find that the Complainant’s claim in this regard is well-founded, with respect to the cognisable period 14 April to 13 October 2017.

CA-00017274-001 (Constructive Dismissal):

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint in this regard is not well founded and is, therefore, rejected.

CA-00017274-002 (Penalisation):

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint in this regard is not well founded and is, therefore, rejected.

CA-00017274-003 (Organisation of Working Time Act):

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint in this regard is well founded and, having regard to all the circumstances, I order the Respondent to pay the Complainant an amount of €1,000 as just and equitable compensation for the contravention of Section 12 of the Act.

Unfair Dismissal of Act

Constructive Dismissal

Employees (Provision of Information & Consultation) Act

Penalisation

Organisation of Working Time Act

Rests and Intervals at Work