Complainant

Respondent

Anonymised Parties

A Pharmacy Manager

A Pharmacy

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-00030728-001

09/09/2019

The Complainant’s claims fall under the Unfair Dismissals Act 1977-2015 wherein the Complainant claims she was unfairly dismissed from her employment with the Respondent on 17 July 2019.

Preliminary Objection:

The Respondent raised an objection as dismissal is at issue.

Consequently, the burden of proof rests with the Complainant.

The Complainant commenced employment with the Respondent on 1 January 2003 and held the position of Pharmacy Manager.

She gave evidence that difficulties arose with Pharmacist and the Area Manager in 2019. The Complainant felt the situation became intolerable and she gave evidence that she had no choice but to resign from her position by email detailed 17 June 2019.

The Complainant sent a lengthy email with “Grievance” as the subject matter to the Respondent on 25 June 2019.

The Complainant stated that she initially declined to invoke the company That it be implemented by letter dated 27 June 2019 from her solicitor. This was acknowledged by email on the same day by the Respondent.

Later that same day the Complainant received another email from the HR Manager acknowledging her letter of resignation.

By letter dated 28 June 2019, the Complainant’s solicitor wrote a further letter stating that she “does not wish to revoke her resignation” and while also noting that she has invoked the grievance procedure and “insists upon a full investigation being carried out in accordance with that procedure.”

A follow up email, dated 2 July 2019, was sent from the Complainant’s solicitor to the Respondent.

The Respondent responded by letter, dated 5 July 2019, stating it would be in touch with the Complainant directly. A second letter, also dated 5 July 2019, was sent directly to the Complainant statin:

“To avoid any misunderstanding, I must seek clarification from you at this point if you wish to remain with the company and participate fully in the investigation into your grievances raised. This will enable us to investigate the matters fully and try to alleviate any concerns you may have. If, however, you choose not to remain with the Company, the company will be left with no option but to accept your resignation of 17 June and in line with your contract, your employment will end on the 17 July 2019.

In the meantime, an investigation officer will be appointed to carry out a full fair and impartial investigation into the complaints made by you, once this person has been appointed they will be in contact with you to discuss your grievance further. Should you still wish to resign, as previously advised we will conduct our internal review of the matters raised.”

By email, dated 9 July 2019, the Complainant responded advising that the Area Manager made it very clear that she was not bothered whether she left or not and the HR Manager told her it was “fine” if she decided to go. The Complainant expressed her dissatisfaction at her treatment by the Respondent after 16 years of loyal service.

The Complainant gave evidence together with her contemporaneous handwritten notes of a meeting on 10 July 2019 with the Cluster Manager. The Complainant stated that she was told not to put herself on the roster from 17 July 2019 to which the Complainant corrected her and stated her final date was 21 August 2019.

On 17 July 2019, the Complainant claims that she dismissed by the Cluster Manager when she came into the pharmacy. At 2pm the Cluster Manager told the Complainant that the Respondent decided to terminate her employment on that day and she would be paid until 21 August 2019. There was reference to the return of the Pharmacist returning from annual leave the following day and there would be “less drama” if she left. The Complainant handed back the keys and left the premises. The Complainant produced contemporaneous handwritten diary entries of this conversation.

On the same day at 16.41 the Complainant gave evidence of a call from Senior Manager, Employee Engagement and Relations and told her she had been dismissed from Company. The Complainant advised that anything further could be dismissed with her solicitor and refused to continue the conversation. The Complainant stated that she had not received anything regarding her grievance nor had anyone called to arrange a meeting with her.

The Complainant gave evidence that she received an email from the same Senior Manager at 17.36 advising that an investigator had been appointed and she could meet her at 13.00 the following day in Dublin. The Respondent replied stating the email made no sense to her and reiterating that she had been dismissed.

At 9.13pm also on 17 July 2019, the same Senior Manager replied stating she had not been dismissed and that she sought to progress the investigation.

On 26 July 2019 the Senior Manager again emailed the Complainant seeking to clarify the events of 17 July 2019 when she was asked to leave the pharmacist. It was acknowledged that the Complainant was still an active employee and wanted to facilitate her grievance. She asked the Complainant to return to her by 31 July 2019 as to whether she wished to meet with the investigator.

A follow up letter was sent to the Complainant on 7 August 2019 which was responded to by the Complainant’s solicitor on 9 August 2019 disagreeing with the version of events in her email of 26 July 2019. The Senior Manager responded by letter dated 16 August 2019 directly to the Complainant stating that despite the Complainant’s departure that “we are investigating the matters raised by you” and it “will continue to investigate the issues raised in your absence and we will issue you with the findings of this investigation on its completion.”

Financial Loss

The Complainant gave evidence that she obtained temporary work following her departure from the Respondent before obtaining permanent employment on 23 September 2019. The Complainant gave evidence that she was at a monthly loss of €2,199.91 gross per month.

The Respondent chose not to produce a written submission or booklet of documents at the hearing.

The Respondent did not dispute the correspondence between the Complainant and Respondent it is therefore taken as being accepted.

The Cluster Manager gave evidence of the events of 17 July 2019 and stated she met with the Complainant but never used the word “dismissal”. She stated she went to discuss her leave date and advise she would be paid until 20 August 2019. She confirmed that the Complainant was unhappy with the way she was being treated by the Respondent.

Upon cross examination of the Cluster Manager, she confirmed there was no minutes of her meeting on 17 July 2019 with the Complainant nor did she discuss it with HR. She accepted that she was not aware that HR had written to the Complainant on 5 July 2019.

The Senior Manager for Employee Engagement and Relations gave evidence of the letters she wrote to the Complainant. It was her evidence that she attempted to resolve the Complainant’s grievance as set out in the letters. The letters and were not disputed by either party and therefore, do not intend detailing this correspondence again.

In cross-examination, it was put to the Senior Manager that her email of 17 July 2019 was an attempt to undo the dismissal by the Area Manager. This was denied. She was questioned about the assertion that the grievance investigation would continue even in the Complainant’s absence in her letter of 16 August 2019. In response, she stated that it was not a grievance investigation but just an “investigation”. No clear answer was given as to the status of report is or when it or if will be furnished to the Complainant.

The Respondent concluded that it was its case that no dismissal took place on 17 July 2019.

Section 1 of the Unfair Dismissals Act 1977 defines dismissal in relation to an employee as meaning: -

(a)     the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)     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, or

(c)     (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

It is worth noting that the Complainant did not seek to advance a claim of constructive dismissal as defined in Section 1 of the 1977 Act.

Both parties confirmed at the hearing that the Complainant worked on 38 hours contract and received a gross monthly wage of €4,149.89.

The first question is to ascertain whether the Complainant resigned from her employment or if the Respondent dismissed her from her employment on 17 July 2019.

It is accepted by both parties that the Complainant resigned from her position by email dated 17 June 2019.

It is accepted that in the same email that the Complainant stated that she would remain with the Respondent until 20 August 2019. It is accepted that the Complainant received payment up to 21 August 2019 by the Respondent.

The Complainant’s contract of employment at clause 9 requires in the event of termination that one month’s notice is given in writing. The clause also states: “Except in circumstances justifying immediate termination of your employment, the Company may make payment in lieu of notice, in which case your employment shall terminate on the date of written notice.”

The evidence of the Complainant is accepted that she agreed her final date would be 20 August 2019. It is also accepted that she text the Area Manager before she left on holidays requesting could stay until 21 August 2019 but did not receive a response from Area Manager.

The Complainant’s evidence is accepted that the Area Manager and/or Senior Manager unilaterally decided that she should finish on 17 July 2019 despite her request to stay on.

The Complainant’s evidence is accepted regarding the Area Manager’s instruction not to put herself on the roster beyond 17 July 2019 and her request that she leave the pharmacy on 17 July 2019 on the basis the Pharmacist was returning.

Although there was some confusion as to whether the Complainant wanted to pursue a grievance or not, it is an undisputed fact she did provide a detailed email entitled “Grievance” on 25 June 2019. Despite an letter dated 27 June 2019 from the Complainant’s solicitor requesting that grievance be investigated and an email from the Respondent on 27 June 2019 confirming that the “necessary actions to investigation and address same” would be undertaken and further assures given in writing on 5 July 2019 , the first real action to investigate this grievance came by email on 17 July 2019 at 17.36 advising of a meeting which had been arranged at 1pm the following day in Dublin. This is contrary to the Respondent’s own Grievance Procedure which sets out very short time limits of 5 working days to deal with a grievance.

The Respondent stated in a letter of 5 July 2019 and 16 August 2019 stated that a grievance investigation would proceed in her absence, from cross examination it could not satisfactorily be concluded that the Respondent has initiated or intends to conclude the Complainant’s grievance. It is noted that the Respondent has a HR Department to deal with such issues.

This was a very unfortunate way to handle the Complainant’s departure after 16 years of service with the Respondent.

However, this complaint seeks adjudication under Section 8 of the Unfair Dismissals Act, 1977 to 2015.

The Unfair Dismissals Acts does not provide for the situation where an employee voluntarily resigns from her position by giving written notice in accordance with her contract of employment and where the employer than decides to pay her in lieu of the remainder of her notice.

This situation does not give rise to an unfair dismissal as claimed by the Complainant.

The Complainant has failed to discharge the burden of proof set out in the Unfair Dismissal Acts 1977-2015 and consequently, the claim is not well founded.

Unfair Dismissal – Disputed Dismissal – Grievance – Resignation – Not Well Founded