ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00020678

Parties:

Complaint(s):

Date of Adjudication Hearing: 30/09/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This Complaint submitted by a Customer Services Advisor refers to a claim for constructive dismissal by the Respondent, a Retail outlet. The Respondent has denied the complaint and maintained the Complainant resigned her position.

Summary of Complainant’s Case:

The Complainant was employed as a Customer Services Advisor where she commenced employment on the 10th September 2016. The Complainant submitted that in November in 2017 she advised the Respondent that she was planning to take maternity leave. Her original commencement of maternity leave was due to commence on 27th of November 2017, however due to her condition she departed on maternity leave in early November 2017 and gave birth prematurely.

The Complainant submitted that she decided to extend her maternity leave to 16 weeks unpaid leave and reported this to the Respondent in April 2018 where she completed the required form. The Complainant submitted that in May 2018 until her return to work which was due in December 2018 she was paid by the Respondent. Her total earnings over that period of time was €4,853.

The Complainant maintained that she advised the Respondent in June 2018 that she was in receipt of pay but the Respondent continued to pay her during her extended maternity leave period. The Complainant submitted that when she was preparing to return to work in December 2018, she would have received a short phone call from a Store Manager she had not previously worked for advising her that she had been overpaid and she owed the Respondent €4,853. At that time, she was asked how she would make this repayment.

IN preparing for her return to work the Complainant reported to the Store Manager in December 2018 and she was advised that she could take annual leave which would cover her until the 3rd January 2019. The Complainant therefore took the annual leave and was planning to return to work on the 3rd of January 2019. During this period the Complainant spoke with the Store Manager and she was told she would be returning to her former work routine which involved some late evenings and weekend work.

In response to this the Complainant advised the Store Manager that in light of her family circumstances she was not in a position to work the same schedule as she had before her maternity leave and she was seeking a change in the roster to facilitate more weekends off and less late working hours. The Complainant maintained the Store Manager advised her that she was not in a position to change the Complainant’s working hours, other than by reducing her hours to work an 8-hour shift, or to remain on a 16-hour shift as was her current arrangement. The Complainant advised the manager that she could not afford to work only 8 hours. The 16 hours roster that she was provided did not suit her family circumstances.

The Complainant maintained that when she returned to work on the 6th January 2019, she was told by the Store Manager that there was no option to change the roster unless she reduced to 8 hours. The Complainant therefore understood the Respondent was not in a position to facilitate her request for a change of her roster.

When the Complainant returned to work on the 6th January 2019, she told the Respondent that she was resigning and presented a letter of resignation and raised some 12 complaints about how she had been treated at that stage.   The Complainant submitted that she was advised that she could raise a grievance, however her resignation was still accepted at that time.

The Complainant maintained that after she had resigned, she received a letter from the Respondent advising that she owed the Respondent €4,853 in overpayment and she was asked how this would be repaid. She also maintained that she received a letter dated 15th January 2019 where the Store Manager advised her as the manner of her leaving suggested she may have had some concerns she could consider the grievance procedure. The Complainant was informed that she could raise any issues that she may have under the Grievance Procedure so that the Respondent could look into resolving these for the Complainant.

The Complainant maintained that as her resignation her letter contained her complaints it should have been dealt with at that stage. The Complainant submitted that she did not receive any response to the complaints in her resignation letter until the 28th January 2019 and where she was again being asked to make proposals with regard to her overpayment of wages. The Complainant submitted it was not until 21st of February 2019 that there was any response from the Respondent to any of the issues she had raised in her letter of Complainant that accompanied her resignation.

The Complainant therefore submitted that from the outset of her maternity leave there were errors with how her maternity was being handled. Whilst she acknowledged she had received a baby-pack when she advised the Respondent of her maternity, she contended that she received no information about the maternity leave scheme; that she had been incorrectly paid during her maternity leave; and that when she returned to work she was not facilitated with her request for a change in her work pattern.

In light of these issues the Complainant felt that the Respondent had not dealt with her situation reasonably and that she had no option due the work roster but to resign. She further maintained that she was never advised that she could raise a grievance and that the matter could be considered as part of the organisation’s grievance procedures.

Summary of Respondent’s Case:

The Respondent stated that in April 2017 the Complainant advised that she was pregnant, and she commenced her statutory maternity leave in November 2017 with a return date of 29th May 2018. The Respondent advised that in April 2018 the Complainant gave notice of her intention to take 16 weeks additional unpaid maternity leave which would commence on the 28th of May 2018.

The Respondent advised that an error occurred whereby the Complainant was paid while she was on her extended maternity leave and she continued to receive this payment in error up to an including October 2018, amounting to 5 months over payment in total.

The Respondent advised that in November 2018 the Complainant met with a new Store Manager to request an extension to her annual leave and she was advised that while her maternity leave could not be extended, she could take her accrued annual leave which would tie her over the Christmas period, and she could return to work in January 2019.

The Respondent acknowledged that its Store Manager had spoken to the Complainant about her roster before her return to work. The Respondent acknowledged that the Store Manager was asked if the Complainant could only work one day at the weekend however the Store Manager advised the Complainant that she was on a 16 hour contract and she could not accommodate a one day weekend shift and suggested that she could work an 8 hour contract which may include overtime, and that her working hours could be facilitated to suit her availability on the 8 hour shift, but not on her 16 hour roster. The Respondent maintained that it asked the Complainant to come back to them on the suggestion of an altered 8-hour roster, but the Complainant never did. The Respondent submitted that as the Complainant had not reverted to her she had no option but to detail the Complainant on the 16-hour roster. The Store Manager contacted the Complainant by text on 31st December 2018 advising her that her roster had been posted and it was identical to her prematernity pattern. The Store Manager contacted the Complainant again on 2 January 2019 to advised that she had looked at the roster again but could not change it.

The Respondent advised that on the 5th January 2019 the Complainant was due to return to work, but she rang in sick due to a vomiting bug. The Complainant attended work on the following day, the 6th of January 2019, without her uniform. The Complainant asked if she could speak with the Store Manager about her hours, and a meeting was held. The Store Manager confirmed that she advised the Complainant that she was not in a position to change her hours as she needed to cover the 16-hour roster that she had been employed for.

The Respondent maintained that this discussion took place at the back of the store where the Store Manager had just completed work when dealing with a customer and that as she was not in a position to change the roster, she advised the Complainant and the Complainant then presented her resignation letter. The Respondent therefore maintained that the Complainant had decided to resign and had presented an already prepared letter for the People Director in that regard.

The Respondent advised that it also took the written complaints from the Complainant and would have processed the complaints through its HR department which is based in the UK. It therefore took some time for the letter to be responded to. The Respondent confirmed that it wrote to the Complainant on the 15th January 2019 advising that it would accept the resignation and reminded the Complainant of the grievance procedure under which she could address any of her concerns. The Respondent advised that the Complainant did not respond to this correspondence immediately but emailed the HR team on the 4th February 2019 where she set out her disappointment in how the Respondent was handling the situation in relation to being overpaid.

In the meantime, on 29th January 2019 a phone conversation took place between the Complainant and the Area Manager where the Complainant was advised on how the Respondent would deal with her complaints. The Respondent submitted that in this conversation the Complainant’s behaviour was a concern for the Area Manager.

On 8th February 2019 the HR team responded to the Complainant and set out that an Area Manager would meet with the Complainant to hear her grievance and a meeting was arranged for the 21st February 2019. However, in light of the attitude of the Complainant where the Complainant came across in an aggressive tone in text to the area manager, the Responded decided on 19th February 2019 to cancel the meeting planned for 21st February 2019. At that point the Complainant was advised that as she was no longer an employee her grievance would be investigated in line with the company policy and she was asked to forward any additional points that she would like raised.

The Respondent advised that the Complainant emailed through additional points to be investigated at that time. On the 14th March 2019 the Complainant was notified that the investigation was still ongoing but was delayed due to some colleagues that needed to be spoken to were on annual leave. On the 22nd March 2019 the grievance was completed, and an outcome letter was issued to the Respondent. This letter addressed all twelve concerns raised by the Complainant. It upheld a concern that the Complainant had not been paid properly for her ante-natal classes that she had attended before her maternity leave. However other grievances raised in the complaint were not upheld. The Respondent advised that on 26th March 2019 the Complainant then raised her claim for constructive dismissal to the WRC.

The Respondent acknowledged that the Complainant was overpaid in error and that it sought a recovery from the Complainant but had asked that the Complainant provide a solution as to how the overpayment would be returned. It maintained that it did not demand the Complainant to make this payment but was waiting for the Complainant to come to an arrangement with the Respondent. At the time of the hearing the overpayment had not been returned.

The Respondent also maintained that the Complainant resigned before she had raised her grievance. It maintained that it was not in a position to give her more favourable working hours on a 16 hour contract, however the option was given to her that if she was wished to reduced her hours to 8 hours she would be facilitated for the time off that she needed, and there was a possibility that she could earn a further 4 hours overtime. The Respondent acknowledged that the Complainant did not accept this offer and further maintained that the Complainant never came back to discuss the matter. When the Complainant attended work on the 6th January 2019, she was told that it was not possible to change her roster and at that point she resigned. On that basis the Respondent submitted that the Complainant resigned before she had exhausted the internal procedures and as such it would be unreasonable to deem that they had behaved in a manner that warranted the Complainant to consider the employment relationship so fundamentally damaged that she had no option but to resign.

The Respondent therefore argued that the Complainant was not entitled to terminate the contract of employment by virtue of any demonstrated breach of contract on the part of the Respondent, or that it had acted so unreasonably as to make the continuation of the employment intolerable so that it was reasonable for the Complainant to resign.

Legal Submissions

The Respondent referred to the contractual and reasonableness test with regards to the contract of employment. Referring to jurisprudence in Conway v Ulster Bank, UD 474/1984, the Respondent argued that its actions were in no manner a repudiation of the contract of employment and nor did it demonstrate that it no longer intended to be bound by the contract. The Respondent argued that no change occurred in the contract to make it so radically different from what was there before. It maintained that it fulfilled its contractual obligations at all times. It had an obligation to return the Complainant to her former work of 16 hours, which it did, and the Complainant had not exhausted the process to renegotiate a shorter working week. It advised that it had sought to facilitate the Complainant’s requirements by offering her either a 16-hour contract or an 8-hour contract and that the Complainant had rejected these offers without a full consultation.

With regards to the reasonableness test the Respondent maintained that it did not act unreasonably so as to render the relationship intolerable and it was the employee who acted unreasonably in resigning, particularly in respect to the Complainant’s failure to exercise the internal grievance procedures before she resigned. Referring to the jurisprudence in McCormack v Dunne Stores, UD 1421/2008, the Respondent maintained that the Complainant failed to act reasonably in that that she did not demonstrate that she had exhausted all internal procedures, formal or otherwise, in an attempt to resolve her grievance with the Respondent. In this regard the Respondent maintained that the Complainant issued her grievance after her resignation and where she would have been aware of her right to raise an issue through the grievance procedure as she would have been trained in the employee handbook on her induction. The Respondent also submitted that the Complainant’s partner was also a supervisor with the Respondent. (It is noted in the evidence provided by the Complainant that her partner maintained that it was not his role to advise the Complainant on HR matters, and any issues that she would have raised would have been directed to another manager. Furthermore, her partner advised that he had not been involved with processing maternity leave matters before and therefore would not be conversant with the procedures and consequently would not have been in a position to advise the Complainant of how to apply the grievance procedure.)

The Respondent therefore maintained that it acted reasonably and fairly at all times, and in accordance with its policies, with best practice, and with appropriate conduct. It accepted that a payroll error was made which resulted in the Complainant being overpaid whilst on additional maternity leave, however it addressed this matter with the Complainant as soon as they became aware, and they were willing to facilitate a reasonable repayment plan.

The Respondent therefore maintained that the Complainant failed to fully utilise the internal procedures to resolve her grievance. As such the Respondent argued that by virtue of the Complainant’s actions, the Complainant’s resignation does not fulfil the test for reasonableness and cannot be determined to be a constructive dismissal.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.

Constructive dismissal cases are based on the entitlement test and the reasonableness test. Under the entitlement test the Complainant must succeed in arguing that she is entitled to terminate the contract on the grounds that the Respondent has breached a fundamental condition that goes to the root of the contract. In general, this arises where the actions of the Respondent demonstrate to the Complainant that the Respondent no longer intends to be bound by one or more of the essential terms of the contract of employment. Referring to the test being applied in Western Excavating (ECC) Ltd V Sharp (1978) as was applied further in Murray V Rockabill Shellfish Ltd (2012) ELR 331 a significant breach of the Complainant’s contract should be evident. In effect the question is whether it was reasonable for the employee to terminate her contract on the basis of the employer’s behaviour.

Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that: ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. Indeed, the EAT has made it clear in a series of decisions, as followed by the WRC Adjudication Service, that failure to use company procedures to address a grievance is a necessity in upholding complaints of Constructive Dismissal.

In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Having considered the issues and evidence presented I am satisfied that the Complainant experienced some difficulties relating to the management of her maternity leave. In that regard she would have been given incorrect advice at the start of her maternity leave relating to her entitlements, and also had to depart early due to her medical circumstances. When the Complainant advised the Respondent that she was seeking her extra period of maternity leave she was automatically paid for five months in error.

I am satisfied that this was a genuine error on behalf of the Respondent, and it was reasonable for the Respondent to raise this matter with the Complainant in early November 2018 when it realised the error. There was no evidence presented that the Respondent behaved unreasonably in dealing with this matter at the time. I therefore do not find the Respondent’s behaviour to be unreasonable with regards to addressing the overpayment of wages to the Complainant.

The evidence supports that when the Complainant was returning to work in December 2018, she was seeking more favourable working hours to address her personal circumstances. I am satisfied that she raised this with the Store Manager. Having considered the matter the Store Manager advised the Complainant that she was not in a position to facilitate more favourable hours if the Complainant remained on a 16-hour contract, however she could facilitate the request if the Complainant operated an 8-hour contract. With an 8-hour contract there was a possibility that overtime of a further 4 hours would be provided. I am satisfied that had the Complainant accepted the 8-hour arrangement with overtime she would been provided with the opportunity to work on average a 12-hour week. However, she stated that she was not happy with an 8-hour contract without a guarantee that she would receive the further 4 hours as she could not afford to return to work on a revised contract of 8 hours. Equally the Complainant maintained that she was not in a position to return to the working arrangements as per her prematernity roster, which was for 16 hours and included weekend and late evening work.

In trying to address this matter I do not find the Respondent was acting unreasonably or in such a manner as to repudiate its obligations to the Complainant. In trying to facilitate the Complainant it had offered an 8hour roster with a possibly of more work whilst guaranteeing the Complainant with the arrangement she would not have to work late shifts or her former weekend roasters. It appears that the Complainant wanted an entirely different contract of employment to suite her own arrangements, and clearly the Respondent as a retail outlet could not provide this customised working arrangement.

Based on the evidence provided I am satisfied that the Complainant resigned without raising a formal grievance of this matter, and the other complaints that she included with her resignation letter. Whilst acknowledging the Complainant may not have been aware of the company’s grievance procedure, I am satisfied that the Complainant was aware that she was unhappy and had drafted her complaint in a document that she submitted with her resignation and before providing the Complainant with an opportunity to consider the complaints in the detail they merited. The detail of her complaints was provided to the Respondent after she had submitted her resignation.

Accordingly, I find that the Complainant resigned before providing the Respondent with a reasonable opportunity to formally consider and address her concerns. As such I find that the Complainant resigned prematurely. I therefore do not conclude that the Respondent behaved in a manner that could be deemed to have demonstrated a breach of the Complainant’s contract of employment or acted so unreasonably as to make the continuation of the employment intolerable.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

In order to prove constructive dismissal, the claimant must clearly show that there was no other alternative option open to her other than leave her employment. It must be demonstrated that all reasonable alternatives have been considered. In this case the Complainant has not demonstrated that she made a reasonable attempt to exhaust the internal procedures.

Therefore, the case of unfair dismissal is not upheld.

Dated:   29th January 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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