FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IBEC) - AND - MS ANN MAHER (REPRESENTED BY SEAN ORMONDE & CO SOLICITORS) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No: ADJ-00009993 CA-00013043-001
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 22 June 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 17 December 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Ann Maher(hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00009993 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that she was unfairly constructively dismissed by her former employer, Tesco Ireland Ltd hereafter the (Respondent). The Adjudication officer dismissed the claim on the basis that the Complainant had resigned from her position of her own volition.
Background
The Complainant was employed by the Respondent as a General Assistant on the bakery counter from 21stMarch 2008 until 3rdApril 2017 when her employment ended. On foot of an incident in the workplace the Respondent placed the Complainant on paid leave and commenced an investigation into the incident. Following the investigation meeting the Complainant tendered her resignation. It is her submission that she was constructively dismissed. It is the Respondent’s submission that the Complainant tendered her resignation by letter during the investigation process. Dismissal is in dispute, so it is for the Complainant in the first instance to establish that a dismissal took place.
Complainant’s case
On the 28thMarch 2017 the Complainant’s shift was due to finish at midday but the Store Manager asked her if she could continue to 2.00pm. It was her evidence to the Court that this happened on a regular basis as there were not enough staff. On the day in question she was supposed to collect her grandson from school, but it slipped her mind. At about 1.40pm her grandson appeared at the bakery counter and he looked very pale. He informed her that he had injured his arm and that he thought he might have broken it. The Complainant gave her grandson the keys to her car to wait for her. It was the Complainant’s evidence that she did a quick tidy up of the bakery and left the store. The following day she attended for work as usual and just before she finished her shift, she was called to the office to see the HR People Manager. When she went to the office, she was asked by the Hr People Manager if she had taken a bottle of water and not paid for it the previous day. It was her evidence that she tried to explain what had happened, but he told her she was being suspended with pay.
On the 30thof March 2017 she received a letter in the post inviting her to an investigation meeting and informing her that the Respondent was investigating an alleged breach of company policies. The letter states that the investigation could result in a disciplinary hearing which may result in disciplinary action up to and including dismissal. The letter also informed her that she was entitled to be accompanied by a shop steward or Trade Union Official.
The investigation meeting took place on the 3rdof April 2017. It was the Complainant’s evidence to the Court that Mr Power who was appointed to carry out the investigation took her step by step through the events on the day in question. He told her the time she had commenced work, the time she was seen taking the bottle of water, putting it into a white rubbish bag and not paying for it, the time she was seen going outside the store with a man and coming in to the store and the time she was seen finishing the bottle of water and throwing it in the bin.
It was the Complainant’s evidence that she explained to Mr Power that she was in the bakery on her own and the issue about her grandson. She also told the Court that there was an audit that day and that she had to keep the bottle hidden as they cannot have anything out during the audit. It was never her intention not to pay for the water. On occasions in the past she had taken bottles of water and paid for them at the end of her shift. It was her evidence that she was aware of the company’s various policies and the requirements in relation to staff purchases.
The Complainant told the Court that at the end of the investigation meeting she asked what will happen? Will I be dismissed? Mr Power’s response was that more than likely she would and that he would let her know in three days. After the meeting she spoke to her union rep and asked him if it would be possible for her to resign or go back to the previous store she had worked in as she did not want to be dismissed. He undertook to find out and get back to her. After lunch on the same day she received a phone call from her union representative who advised that Mr Power had said that he would accept her resignation if he received it that day before four o’clock.
It was the Complainant’s submission that she believed that she was going to be dismissed and to avoid that she handed in her resignation. In cross examination the Complainant accepted that it was her signature on all the Company policy documents and that the handbook stated that taking even something as small as a grape could lead to dismissal. The Complainant also accepted that she had signed each page of the minutes of the meeting that took place on the 3rdof April to indicate her acceptance of them and the fact that there was no mention of her being told that it was likely that she would be dismissed. The Complainant did not dispute that she had Union representation at that meeting. In response to questions from the Court the Complainant confirmed that she was aware that the Respondent had a zero-tolerance policy towards not paying for goods and that she was the one who had raised the option of resigning. She confirmed to the court that her union representative had not expressed an opinion either way in relation to her resigning.
The Complainant’s representative told the Court that the Complainant believed she was about to be dismissed and that was why she resigned. It was the Complainant’s submission that the Respondent by their conduct, both acts and omissions, created a situation where the Complainant was forced to resign and therefore, she was constructively dismissed.
Respondent’s case
It is the Respondent’s submission that the Complainant had breached company policies and they were entitled to investigate it in line with the Company policies. Before the investigations stage was completed the Complainant decided to resign therefore, there was no dismissal. Mr Weldon the Hr People Manager in his evidence to the Court stated that a security guard had informed him that the Complainant had taken a bottle of water, put it into a white rubbish bag and had not paid for it. He met with the Complainant on the 28thMarch 2017 and she confirmed that she had taken the bottle of water but that she had forgotten to pay for it. He advised her that she was suspended with pay and that there would be an investigation.
Mr Power who carried out the investigation in his evidence stated that the letter inviting the Complainant to the investigation meeting was standard. It was also his evidence that the investigation meeting was put back a few days to facilitate the attendance of the Complainants union representative. He informed the Court that it was his role to investigate the alleged incident and to decide if there was a case to go forward to the disciplinary process. It was his evidence that he did not have the authority to dismiss or to decide if dismissal was appropriate. He confirmed that the minutes were an accurate reflection of the meeting and that at no stage had he advised the Complainant that more than likely she would be dismissed. Mr Power told the Court that after the meeting he received a telephone call from the Complainants representative who indicated that the Complainant had asked him to inquire whether if she resigned her resignation would be accepted. He confirmed that he had told the Complainant’s representative that if she submitted a resignation letter by four o’clock that day, he would accept it. It was his evidence that he was prepared to let her have a clean exit if that was what she wanted.
The Respondent’s representative submitted to the Court that the Complainant had submitted her resignation prior to the process being concluded and any decision being reached. The Respondent drew the Courts attention to what it submitted was a number of relevant cases on constructive dismissal and stated that the Complainant had not raised any grievances with the Respondent and had not established that the actions of the Respondent could be considered to be such as to warrant her tending her resignation.
The applicable law
Section 1 of the Act defines constructive dismissal in the following manner
“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,”
Section 6(1) of the Act states“ Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
Issues for the Court
As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.
Section 1of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. InWestern Excavating (ECC) Ltd v Sharp[1978] IRL 332 it was held that to meet the “contract test”
an employer must be“guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”as held .
Secondly, there is an 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 conducted 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, if so, he is justified in leaving.
Discussion
There was no suggestion by the Complainant that there had been any significant breach going to the root of her contract. The question that arises for decision therefore in this case is whether, it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct.
The Respondent on foot of a breach of policy being brought to their attention decided to investigate the breach in line with their policies. The Complainant was represented at the investigation meeting and in her evidence accepted that the minutes of the meeting were accurate. The Court cannot accept that the fact of the Respondent deciding to launch an investigation into an alleged breach of company policies can in and of itself justify a resignation such as it would constitute a constructive dismissal.
Findings of the Court.
The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submission made by the parties
In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.
They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (seeConway v Ulster Bank LimitedUDA474/1981). InBeatty v Bayside SupermarketsUD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:-
- “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.
In the instant case, the Court is not satisfied that there were factors present which might have led the Complainant to believe that she would not be afforded fair procedure by the Respondent in terms of the investigation and disciplinary procedure. If having gone through the procedure the Complainant was dismissed, she would have had the option at that stage of taking an unfair dismissal case. However, the Complainant chose to pre-empt the procedure and any possible outcome by handing in her resignation.
Determination
In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. Accordingly, the court must hold that the complainant’s employment did not come to an end by dismissal.
The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Louise O'Donnell
MK______________________
6 January 2020Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.