Complainant

Respondent

Anonymised Parties

Store Assistant

Retail Chain Store

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-00021035-001

07/08/2018

The Complainant contends that he was constructively dismissed from his employment.

The Complainant was employed by the Respondent from 15th November 2016 to 3rd May 2018.   He worked in or around 27 hours per week. He was taken on for Store T initially and after a few weeks sent to Store N. The Complainant had a number of complaints about his perceived treatment by the Respondent during his tenure of employment summarised as follows:

He complained about not receiving travel and expenses when he was moved to Store N. He stated that he tried on numerous occasions to have management address this. The Company policy sets out that he should have been paid 31c per kilometre.   The Complainant alleged that he was subjected to bullying in the workplace. He alleged that one manager told him he was €50 short on his till but this was subsequently found to be untrue. He alleged that he was shouted at by an Assistant Manager for forgetting his password.   He alleged that he was instructed by the same Assistant Manager to check customers’ bags, and in one particular incident a female customer who was very irate and this caused problems. The Complainant was called to the office about this, but he believes it should have been the Assistant Manager who was called up for this incident. The Complainant alleges he was called a ‘f…… foreigner’ by customers. He alleges that management wanted pallets unloaded faster and that he felt he was never good enough. He wanted management to tell him he was good at his job, but he never got praise, only criticism.      He also alleges that he paid €2 on occasions when customers asked for them for trolley usage and did not return them. The Complainant stated that one day he was asked to clean underneath shelves and he was subsequently subjected to inappropriate sexual innuendos from another staff member who stated ‘that’s what you get from bending over’. The Complainant stated that he had to resign his employment due to all of these issues, and not being given any credit for his hard work and for being told he was not in line for promotion. He stated that the Respondent was not an equal opportunities employer as he had been refused employment when he applied on line, but had been employed when he was recommended by word of mouth.                                                                            The Complainant stated that he regretted his letter of resignation which stated that it had been a pleasure working with the managers and team in the employment.

The Respondent denies the Complainant’s claims. In summary, it is the Respondent’s case that the Complainant resigned his employment with effect on 3rd May 2018 in order to pursue a career change and further he resigned on good terms with the Respondent as per his letter of resignation:

“Please accept this letter as notice of my resignation from my position as store assistant. My last day of employment will be 05.05.2018.

I have decided to make a career change and work in Logistics, and after careful consideration I realize that this opportunity is too exciting for me to decline.

It has been a pleasure working with you and your team over the last year and a half.   One of the highlights of my career was collaborating with you and working for one of the most efficient company I had chance to experience.   (The company) will keep on growing and I wish you much success with your upcoming challenges.  

Thank you again for the opportunity to work for (The company). I wish you and your staff all the best and I look forward to staying in touch with you.”

It was not until almost six weeks after he left his employment that the Complainant submitted a written complaint in respect to his alleged treatment during his employment.   Notwithstanding that the Complainant had resigned at this stage, the complaint was investigated thoroughly at first instance, and then on appeal. The Complainant’s claims were not supported by any evidence and therefore were not upheld. The one exception to this was the Complainant’s claim in respect to the non-payment of travelling expenses which was upheld and the Complainant was reimbursed accordingly.

As the Complainant failed to invoke the grievance procedure prior to his resignation, his claim for unfair dismissal is without justification and should not succeed.

The Complainant commenced employment with the Respondent as a Store Assistant on 15th November 2016.  He was to be based in Store R but for the first three months of his employment he worked at Store N due to staff shortages at that store. At the first paragraph of the Complainant’s signed contract of employment it is stated:

“The Company is entitled to employ you in any of its trading stores in the Republic of Ireland”.

Paragraph 3 confirmed that the Complainant’s normal working hours were 25 hours per week.     Paragraph 12 confirmed that the grievance and disciplinary procedures were set out in the Employee Handbook.    

On 22nd April 2018, the Complainant had his monthly update with the Store Manager Mr K, at which he asked about his prospects for promotion. Mr K told the Complainant that he did not see potential for promotion at that time but that he was happy to work with the Complainant to improve this. The Complainant replied that it would have to be immediate or he would have to find a new job as he needed the money. He then told Mr K that he wished to resign. He initially agreed to work out his roster which was approximately three weeks. He then asked to finish on 5th May 2018 and as requested, he put his resignation in writing.   His resignation letter stated that it had been a pleasure working for the management and team and thanked them for the opportunity to work for the Company.

At the Complainant’s request his actual finish date was 3rd May 2018. On his last day of work he shook Mr K’s hand and stated that he hoped he understood that he just needed the money. The Complainant’s leaver form showed the reason for his resignation was stated as being to “attend a full-time course as Lorry Driver”.  

Almost six weeks after the Complainant left the employment, he submitted a written complaint addressed “Dear or to whom it may concern”. The letter was undated but received on 12th July 2018.   The letter included a complaint that the Complainant had not received travel expenses for the three months of employment when he was required to work in Store N; an allegation that he was harassed by “arrogant management” and an allegation that he had been required to work more than his one week notice period.   In this latter regard, the Complainant detailed that Mr K had required him to stay on until 5th May 2018 but that he left on 3rd May 2018 as he “couldn’t take it anymore”. He then explained that as he had not obtained three waiting days before starting his lorry driver course on 8th May 2018, he was not entitled to social welfare throughout the period of doing the course.   He referred also to being required to work a pallet within 20 minutes, to being required to check customers’ bags and being required to work an electric pallet truck without training. The Respondent responded on 13th July 2018 and advised the Complainant his allegations would be investigated and Area Manager Ms J would be in touch with him. Ms J wrote to the Complainant seeking more details of his complaints. The Complainant replied with a further (undated) complaint received 31st July 2018. In this complaint, the Complainant stated that his “main aim is the travel expenses caused to me for not letting me resign one week after 22.04.18 even though in my contract says I have to give only one week notice”. He noted that even though in her letter Ms J was very focussed on bullying, he was more focused on his expenses.

Ms J was not in a position to conclude her investigation, due to illness. However, she had addressed the travel expenses element of his complaint and concluded that he was entitled to travel expenses for the period he was required to work in Store N. She formally communicated this to the Complainant by letter dated 6th November 2018 and a cheque in the amount of €515.86 was given to him.

Regarding the other issues, Area Manager Mr O took over the investigation. Mr O met with the Complainant on 9th May 2018 and then conducted meetings with other members of staff. On 3rd August 2018 Mr O issued his findings which concluded that there was no evidence to support the Complainant’s allegations or that some incidents although had occurred, did not come within the definition of bullying. The Complainant was given the right of appeal. He appealed the outcome strongly rejecting the results of the investigation. The appeal was heard by Store Operations Director Mr J on 24th September 2018. The Complainant stated he would not attend any further meetings and he wanted the appeal outcome by letter. The outcome was advised to the Complainant by letter dated 18th October 2018.   The Complainant’s appeal was not upheld.  

It is submitted that the onus is on the Complainant to show that because of the conduct of the Respondent, the Complainant was entitled to or it was reasonable for him to terminate his contract of employment. This is a high onus that is placed on the Complainant in order to succeed in his claim. It is argued that the Complainant cannot meet the onus of proof in light of the following:

a. The Complainant’s resignation letter in which he referred to leaving in order to pursue a career change and wherein he stated: it had been a pleasure working for the Company and he thanked management for the opportunity to work for the company and he wished the staff all the best and stated he looked forward to staying in touch.

b. The Respondent’s evidence of the Complainant’s final conversation with Store Manager Mr K, when the Complainant shook hands with Mr K and made a comment that he hoped he understood as he just needed the money.

c. The Complainant’s leaver form which referred to his leaving to attend a full-time course as a lorry driver.

Case law makes clear that in order to succeed in a claim for constructive dismissal, the employee must demonstrate that he or she has exhausted the internal grievance procedure before resigning. In Conway v Ulster Bank Ltd [AD474/1981] the Tribunal considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints”.  Given the Complainant’s failure to invoke the grievance procedure, as contained in the Employee Handbook as received by the Complainant, or in fact, to make any complaint prior to his resignation, the Complainant’s claim for unfair dismissal should fail on that basis.   The Complainant’s post termination complaint could not be relied upon and to do so would defeat the purpose of requiring an employee to invoke the grievance procedure prior to resigning thereby affording the employer an opportunity to address the employee’s concerns.   Moreover, on reviewing the complaint outcome letters (at first instance and on appeal), and the minutes of the interviews in both investigations, it becomes apparent that there was simply no evidence to support the Complainant’s complaints in respect of his alleged mistreatment during the course of his employment. The Complainant made his complaints after his resignation, and it is clear that he submitted them solely in order to manufacture some basis on which to lodge his claims to the WRC.

The definition of constructive dismissal as contained in the Act is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

The onus of proof lies with the employee when claiming constructive dismissal. As contained in the definition in the Act, the employer’s conduct and the reasonableness of the employee must be taken into account.

In normal circumstances a claimant who seeks to invoke the reasonableness test in furtherance of a claim must act reasonably by providing the employer with an opportunity to address whatever grievance they may have. In this instant case, I find that the Complainant's failure to make any complaint in relation to his treatment, prior to his resignation, denied the Respondent an opportunity to address his complaints.   I note the Complainant’s letter of resignation which contained effusive praise for the managers and staff of the Respondent and the fact that the Complainant clearly stated: “I have decided to make a career change and work in Logistics, and after careful consideration I realize that this opportunity is too exciting for me to decline It has been a pleasure working with you and your team over the last year and a half. One of the highlights of my career was collaborating with you and working for one of the most efficient company I had chance to experience.   (The company) will keep on growing and I wish you much success with your upcoming challenges.”

While the Complainant stated in evidence that he regretted this letter, the terminology used and the effusive praise for the company and managers was very clear.  I find that the Complainant’s attempts to resile from this to be disingenuous.

I note that, post resignation, there was a substantial investigation into the Complainant’s complaints and I find that the Respondent acted fairly in thoroughly investigating his complaints, in paying him expenses and refund for estimated coin losses.             

In his direct evidence, the Complainant stated that had he been promoted to Deputy Manager he would have been happy to stay in his employment.

Constructive dismissal, complainant not unfairly dismissed.