Complainant

Respondent

Anonymised Parties

A solicitor

A solicitor’s practice

Representatives

Carter Anhold & Co Solicitors

Richard Grogan & Associates

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-00028911-001

07/06/2019

The complainant was a solicitor employed in a practice which was taken over by the respondent.   The respondent sought to impose a new contract on the complainant and, it is alleged by the complainant, he failed to address grievances raised by her. Subsequently, she resigned and claimed constructive dismissal.

The complainant was employed in a solicitor’s practice for a period of 10 years and 4 months.   When she commenced work the practice belonged to a husband and wife who subsequently sold the practice to the respondent (Mr A) on 29th November 2018.

On taking over the practice Mr A sought to impose a new contract of employment on the complainant and was insistent that the office was a new office and she would be required to undergo a probationary period. The new contract also provided for 12 days annual leave and Mr A was insistent that the start date would not take into account the previous 10 years that the complainant had worked with the firm. The complainant engaged in correspondence with the respondent outlining the issues she had with the proposed contract. Mr A stated that he would not renew the complainant’s Practising Certificate from the Law Society until he received the signed contract. He also stated that he would not be sending the practising certificate renewal form until a good bulk of fee had been brought in by the complainant.

On 28th January the complainant received a call from an auctioneer who had referred a client to her who was purchasing a property. This client had contacted the respondent’s office and asked for the complainant. Mr A had answered the call and stated he did not know who the client was talking about and asked him to send the details directly to Mr A.

Mr A launched a new website for the office on 13th February and the complainant was not included on the page despite having sent Mr A her profile in November 2018.

On 25th January 2019 the complainant could not gain access to Land Direct. Mr A stated that someone had changed the password despite the Land Direct account being linked to his account.

On 28th January Mr A would not acknowledge the complainant on a number of occasions.

On 6th Feb 2019 at 8.39 a.m. the complainant received a text message from Mr A asking if she would be in work that day. The complainant replied that she was out sick that day.

On 26th Feb the complainant arrived into work at 8.32 a.m. at which point she noticed a text sent by Mr A asking if she would be in work or off sick. The complainant went to Mr A’s office and queried why she received the text. Mr A stated that she was late, that it was 8.35 a.m. and she was paid from 8.30.   He stated that she was always late.

On 28th February 2019 the complainant wrote to the respondent under the grievance procedure relating to his conduct towards her. A meeting took place on 8th March 2019. The complainant’s grievances were not dealt with and, in fact, further matters were raised by Mr A which added to her grievances. At this meeting Mr A said there was a severance package on offer and the complainant could accept it if she so wished. Another meeting was scheduled for 15th March 2019 at which Mr A withdrew the offer of a severance package as the complainant was not prepared to accept the severance be paid over the course of a year. The complainant asked for her grievances to be dealt with but Mr A refused to do so saying that these had been dealt with the previous week. Later that day she received an email from Mr A confirming that he would attend a meeting with her on 22nd March.

The complainant was on sick leave from 18th March until 21st March. She returned to work on 22nd March for the scheduled meeting and saw an email from Mr A dated 19th March asking her to outline her grievances and asking who would be her representative.     The complainant emailed Mr A stating that she would have a representative in the office on Monday 25th March and asked him to confirm that this was in order. She received no reply and wrote another email confirming that she would have a representative present on the Monday for a meeting. After she had left work for the day Mr A emailed her stating that he could not meet on Monday and did not propose any follow up meeting. The complainant therefore handed Mr A a letter on 26th March confirming that, due to his unreasonable behaviour towards her and his refusal to address her grievances, she had been left with no other option but to leave her employment. Mr A’s response was to say that she was resentful.

It is settled law that an employee bringing a case under the Unfair Dismissal Act must seek to obtain new employment. In relation to the legal profession there are a significant number of jobs available in Dublin and therefore the complainant should have had no difficulty in obtaining employment. It is evident that the complainant was not actively seeking work after leaving the respondent in particular as she was seeking to be elected as a local councillor.

When Mr A took over the business he noted significant breaches of the requirement to issue Section 68 letters and also issues relating to GDPR involving the complainant. The complainant did not appreciate these issues being raised.

The complainant had been furnished with a contract of employment. It did have the clause about service with the previous office not being taken into account. Her original contract was effectively being updated. It is accepted that this was not correct. The issue in relation to holidays was one that is not correct.

The practising certificate was furnished before the end of January.

The issue regarding the referral of a client by the auctioneer arose due to the use of the complainant’s maiden name, with which the respondent was unfamiliar. In any event it would be a matter for the employer to determine what client, if any, would be taken on by the firm.

In relation to the website, an incorrect profile format and no photograph was furnished by the complainant. No employee was or is on the website currently.

In relation to the issue of 28th January – the alleged failure to say hello – this cannot be classified as bullying.

In relation to the 26th of February the position is that the complainant was engaged to start at a particular time. If she is late she is late. It is a matter for the employee to get in on time and it is completely unreasonable for an employee to contend that an employer would not be able to question same.

In relation to the claim for redundancy, if the complainant is claiming she was made redundant then her Unfair Dismissal claim must fall.

In relation to the allegation that the complainant suffered stress related injury the complainant is obliged to produce relevant medical documentation along with the doctor to be examined in relation to the issue.

Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:

‘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,’

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

The complainant contends that she was constructively dismissed. It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or secondly, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation.

From the evidence presented it is clear that the respondent sought to impose changes in the complainant’s contract of employment, in relation to the calculation of her holidays and, in relation to her commencement date. The respondent acknowledged that these changes could not be implemented unilaterally by the respondent. However, in direct evidence the complainant stated that this position was never communicated to her in advance of her departure and I accept this evidence.   I consider the changes required by the respondent to be breach of essential terms of the complainant’s existing contract which was in place at the time of the transfer of undertakings.

In relation to the reasonableness of the respondent’s behaviour, it is clear that the respondent did not comply with its own procedures in relation to addressing the grievances put forward by the complainant. Rather than deal with the issues of concern to the complainant at the meeting convened for this purpose, the respondent sought to deal with performance related issues of concern to the respondent. In light of her experience in this instance the complainant was entitled to view the grievance procedure relied upon by the respondent as meaningless. The respondent cannot rely upon the mere existence of a written grievance procedure if the respondent does not adhere to the terms of the procedure. The offer by the respondent on 12th April 2019 to deal with her grievances was a considerable time after she handed Mr A the letter on 25th March indicating that she was leaving and why.

Accordingly, I conclude that the ‘ reasonableness test ‘ which asks whether the employer has conducted his affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer has been met.   The complaint of unfair dismissal is therefore well founded.

The respondent has contended that the complainant made insufficient efforts to mitigate her loss.   I note from the complainant’s evidence that she secured suitable alternative employment on 3rd June 2019 and that there were no suitable jobs advertised in the region during that interval. I do not accept the proposition by the respondent that the availability of positions in Dublin required the complainant to apply for one of these.   The individual circumstances of a complainant are relevant in determining what options are viable in order to mitigate loss and the existence of work in Dublin, which would have required the complainant and her family relocating, would not be a viable proposition.

In determining the appropriate compensation I have included a sum of €9100 for loss of redundancy rights. I have also included the sum of €4,200 for loss of earnings.

I find that the complainant was unfairly dismissed and I order the respondent to pay the complainant the sum of €13,300 in compensation.

Constructive dismissal.   Mitigation of loss. Loss of redundancy rights.