Complainant

Respondent

Anonymised Parties

A Catering Manager

A Catering Company

Representatives

James Allen & Co Solicitors

Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026381-001

19/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026381-002

19/02/2019

The Complainant was employed as a Catering Manager and transferred to the respondent via a TUPE agreement on the 27th of August 2018.  

The complainant was advised by the respondent before the transfer that the position of catering manager no longer existed in the location in which she had previously been based due to staff restructuring which resulted in the hiring of a chef.   The respondent offered the complainant her role in an alternative location.

The Complainant claims that the Respondent made an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act 1991 and also claims that she was subjected to a constructive unfair dismissal when she was forced to resign her employment with them on the 11th of December 2018.   The Respondent disputes both claims.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026381-001

19/02/2019

The complainant submits s that

She was employed at the school canteen/restaurant in School A from 2011,

She was notified in August 2018 that the company she worked for had lost the contract for the restaurant and that a new entity would be taking over the running of the restaurant,

Her start date with the new company was due to be the 27th of August 2018 but prior to this she was contacted by Ms. B, HR manager who told her they wanted her to move to site B where her pay would change and the hours would be less also,

she expressed a desire to remain in her current position on the same terms and conditions,

she was then told by the respondent that she was being laid off by them on the 1st of October 2018 and that they wished to enter into a 'meaningful redundancy consultation process',

she was paid one month’s wages on the 1st of October 2018,

she has taken a claim under the Payment of Wages Act 1991 alleging that she is owed €6120.00, due to be paid on the 1st of October 2018,

She resigned on 11th of December 2018.

The respondent submits that

The Complainant has taken a claim under the Payment of Wages Act 1991 alleging that she is owed €6120.00, due to be paid on the 1st of October 2018.

The Complainant has not specified for what reason she is owed this figure.

The Complainant was placed on temporary lay-off on 1 October 2018 and was paid in full up to that date

The Complainant claims for monies properly payable and owing as of 1 October 2018. No such money is owed,

Within the time frame as claimed by the Complainant for the purpose of this claim, the Complainant was an employee of, and paid by, the Respondent but the Complainant did not carry out any work for the Respondent during this time period.

The Relevant Law

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of   employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Section 5 of the Act provides:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.”.

The complainant in the present case has taken a claim under the Payment of Wages Act 1991 alleging that she is owed €6,120.00 which in her claim form she claims was due to be paid on the 1st of October 2018.

The respondent has stated that the Complainant has not specified for what reason she is owed this figure and quotes the following:

In Able Security Ltd v Hardijs Langsteins DWT1319 it was held:

The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of.

The respondent advised the hearing that the complainant in in her claim Form has claimed that she had not been paid since early October and had not heard from the company since the 1st of October.     The respondent advised the hearing that the complainant was paid in full up to the date of temporary lay-off which occurred on 1st October 2018.

The respondent in advancing its case referred to the finding in the HSE -v- McDermott [2014] IEHC 331 where Hogan J held:

For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to the Rights Commissioner in June 2014 will still be in time for the purposes of s. 6(4).   If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

The respondent advised the hearing that the complainant was paid in full up to the date of temporary lay-off which occurred on 1 October 2018.  

The respondent advised the hearing that the current claim is for monies properly payable and owing on 1 October 2018 and the respondent submits that no such money is owed as the complainant during the timeframe the subject of the complaint was an employee of, and was paid by, the Respondent although the complainant during that period did not actually carry out any work for the Respondent. The complainant at the hearing acknowledged that she had been paid one months wages on the 1st of October 2018. The complainant added that she did not receive any wages for the period dating from 1st of October 2018 to her resignation on the 11th of December 2018 and that the sum claimed in the claim form of €6,120 relates to the wages she should have received from the 1st of October to the date of her resignation in December. Both parties agree that the complainant did not actually work any hours during this period. The respondent submits that the sum being claimed was not properly payable to the complainant as she was placed on temporary layoff on the 1st of October and did not carry out any work after that, in addition the respondent repeatedly offered her alternative work which she refused to consider. It is noted the complainant has given the 1st of October as the date of the alleged deduction, but the respondent advised the hearing that the complainant was paid one month’s wages on this date in respect of September 2018 during which she did not carry out any work but which the respondent paid her as ‘a gesture of good will’.

The complainant advised the hearing that she had been employed as a Catering manager in the restaurant at School A since 2011 and was notified in August 2018 that the company she worked for had lost the contract and that a new entity would be taking over the running of the restaurant.  Her start date with the new company was to be the 27th of August 2018 but before that date on 7th of August she was contacted by Ms. B, HR manager who arranged to meet with her prior to the takeover date.   The complainant told the hearing that she had met with Ms. B who made it clear that she wanted the complainant to move to a different site ten minutes away from school A and that her pay would change and the hours would be less also. The complainant stated that she expressed a desire to remain in her current position on the same terms and conditions and was then told that the company couldn't employ her as they had not received the necessary documentation from her previous employer.    She was later told by the company that she was being laid off by them on the 1st of October 2018 and that they wished to enter into a 'meaningful redundancy consultation process'.

The complainant advised the hearing that the redundancy proposals did not materialise and instead the complainant was again offered alternative work by the respondent in location B in November 2018 and again in December 2018. The complainant resigned her employment on 11th of December 2018 and this is the subject of a separate complaint under the Unfair Dismissals Act.

The complainant at the hearing clarified that she did not carry out any work for the respondent since they took over the business on 27th of August 2018 and that she resigned her employment on the 11th of December 2018.

The complainant also agreed that she was paid one month’s wages by the respondent on the 1st of October 2018 which is the date she has cited on the claim form as being the date of the unlawful deduction. Accordingly, I am satisfied from the totality of the evidence adduced and having regard to the precedent case law cited that there was no unlawful deduction made from the complainants wages on the 1st of October 2018 within the meaning of Section 5 of the Act as the complainant was in fact paid one month’s wages on that date and accordingly I declare that this complaint is not well founded.

I declare that this complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026381-002

19/02/2019

The complainant submits that

She was employed at the school canteen/restaurant in School A from 2011,

She was notified in August 2018 that the company she worked for had lost the contract for the restaurant and that a new entity would be taking over the running of the restaurant,

Her start date with the new company was due to be the 27th of August 2018 but prior to this she was contacted by Ms. B, HR manager who told her they wanted her to move to site B where her pay would change and the hours would be less also,

she expressed a desire to remain in her current position on the same terms and conditions,

she was then told by the respondent that she was being laid off by them on the 1st of October 2018 and that they wished to enter into a 'meaningful redundancy consultation process',

she was paid one month’s wages on the 1st of October 2018,

Her solicitor wrote to the company looking for their redundancy proposals however none were forthcoming,

Due to the stress of the situation she was then attending her GP when she received an offer of alternative employment with the respondent,

She had not been offered alternative work since they had told her they were laying her off,

She felt it necessary to resign her position as she could not work in that role for an employer who had treated her with such disdain from the very beginning,

She resigned on 11th of December 2018.

The respondent submits that

the Complainant”) was employed as a Catering Manager since 2011 and transferred via TUPE to the respondent on the 27th of August 2018.

The role of catering manager was not a role exclusively within the school. The Complainant was also engaged by the transferor at a variety of other locations.

At the request of the school, the canteen structure was altered to provide additional variety to students and staff. This necessitated the recruitment of a chef.   This took place prior to the transfer of staff from the transferor and was part of the tendering process. The addition of a chef to the team working in the school meant the role of catering manager was no longer required in the school canteen.

The Respondent engaged with the Complainant from the start of August 2018 regarding possible alternative roles within the Respondent Company.     The respondent offered the complainant a role in a different location on the same terms and conditions.   The new location was ten minutes further away.   The complainant made it clear that she did not wish to undertake any change in her working location.

The complainant raised the issue of redundancy and the respondent considered this but was ultimately unable to make her redundant due to the fact that there was work available for her at another location. The complainant repeatedly refused the offer of alternative employment and by letter of 11 December 2018 the Complainant resigned from her employment.

The definition of constructive dismissal as contained in Section 1 of 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”

Section 1 of 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”. In Western 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”.

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. The complainant in the present case relies on both the contract and the reasonableness test.

The complainant asserts firstly that the respondent breached her contract when it failed to provide her with work under the same terms and conditions as she had worked prior to the TUPE.   The complainant advised the hearing that she was due to commence work with the respondent on the 27th of August 2018 but that the respondent prior to this contacted her on the 7th of August 2018 and sought a meeting with her which took place on the 16th of August 2018.   The complainant stated that she met with Ms. B of the respondent on that date who advised her that the role of catering manager was no longer available at school A due to a restructuring of the restaurant which had resulted in the respondent hiring a chef and which removed the need for a catering manager at that location. The complainant stated that the respondent had offered her a job in a different location which was ten minutes further than school A.   The complainant told the hearing that she was offered this alternative role but that she understood that it would not be on the same hours of work or rate of pay as her position in school A.    The complainant stated that the respondent had followed this up with an email of 21st of August stating that the canteen in school A was changing dramatically and advising the complainant that the respondent was trying to use her experience and skills in the best way possible.   The complainant stated that she had replied to Ms. B stating that she wished to remain in her current position in school A on the same terms and conditions.

Further correspondence ensued between the parties regarding documentation which the respondent was seeking from the transferor in respect of the complainants pay slips for the previous three years and her p45.    

By email of 11 September 2018 the Respondent wrote to the Complainant’s solicitor stating that the Complainant’s position was available, but that certain information was outstanding which the Respondent required for the Complainant to continue working.   On 12 September 2018 the complainants Solicitor wrote to the Respondent requesting clarification regarding information to be provided by the Complainant.   The complainant was not told what this documentation was.     The respondent at the hearing clarified that the outstanding documentation related to the complainants pay slips for the past three year as well as details of her hours of work as the contract provided stated that her rate of pay was €680 per week.   The respondent advised the hearing that it was unclear as to how many hours the complainant had worked at the school per week as her payslip stated that her weekly wage was payable for 40 hours worked.   The respondent advised the hearing that there was not 40 hours work available in the school canteen on a weekly basis as the hours of work were much shorter than that and the respondent added that none of its staff worked 40 hours in the school canteen.     The respondent stated that it needed some clarity regarding the number of hours worked by the complainant on a weekly basis and in what location.   On 30 September 2018 the Respondent wrote to the Complainant requesting a meeting as the outstanding information had not been received.  The email stated, “we need to organise your start back date etc and chat about your role in our company.”

The complainant stated that she met with the respondent on the 2nd of October where she was told by the respondent that she was being placed on temporary layoff as of the 1st of October 2018 and that they wished to enter into a 'meaningful redundancy consultation process with her.   The complainant was paid a month’s wages up to the 1st of October 2018.     On 8 October 2018 the Complainant wrote to the Respondent acknowledging that she had been placed on lay-off and requested the details of the redundancy proposal.   The respondent advised the hearing that it was the complainant who had first raised the possibility of making her redundant and that the respondent had agreed to look into it.   The respondent advised that this discussion took place during one of the informal chats between the complainant and Ms. B.

The complainants solicitor wrote to the respondent again on 9 November 2018 looking for the redundancy proposals however none were forthcoming.  The complainant told the hearing that she was then informed by the respondent that she was not being made redundant but that the respondent was offering her alternative employment at a different location.    This correspondence which issued on the 12th of November 2018 also stated that in the event that the Complainant did not wish to accept the offer of alternative employment, the Respondent requested that the Complainant meet on 15 November 2018 to discuss alternatives.   By letter dated 19 November 2018 the Solicitor for the Complainant wrote to the Respondent again requesting clarification regarding the potential redundancy of the Complainant’s role.

By email of 10 December 2018 the Respondent wrote to the Complainant apologising for the confusion and reiterating it position as previously stated in its correspondence of the 12th of November i.e. that there was work available for the complainant at a different location 10 minutes away from school A and asking the complainant to attend work on the 17th of December 2018.  The email further stated that a failure to attend work would be treated as an absence without authorisation and may lead to disciplinary action.   By letter of 11 December 2018 the Complainant resigned from her employment.

By email of 14 December 2018 the Respondent wrote to the Complainant expressing regret at the decision of the Complainant. The Respondent again offered the Complainant alternative work. The Complainant was informed that as there was work available, redundancy was not being contemplated.

The complainant stated that she had not been offered work for all of September and was then placed on lay off on the 1st of October 2018. She acknowledged that she was paid for the month of September on the 1st of October but stated that she received no work and no pay after that.

The complainant submits that she felt forced to resign given the way she was treated by the respondent and given that they had sought to change her terms and conditions of employment and had behaved unreasonably by requesting her to attend work at a new location.   The complainant states that she could not work in that role for an employer who had treated her with such disdain from the very beginning.

The respondent told the hearing that it had advised the complainant from the very start and before the transfer took place that the staffing structure in the restaurant was going to change when they took over and that all staff were made aware of this and advised that a Chef was being employed to run the new restaurant.  The respondent stated that this was at the request of the school. The respondent told the hearing that this restructuring had formed part of the tendering process and that it was no secret that a Chef was being employed in the restaurant which would remove the need for a catering manager. The respondent stated that it had written to the complainant on the 7 August 2018 seeking to ascertain the Complainant’s wishes following the transfer and inviting the Complainant to attend a meeting to discuss these matters and her future role within the company.   The respondent met with the complainant on the 16 August to informally discuss the new arrangements within the Respondent’s business.   The respondent advised the complainant at this meeting that the role of catering manager was no longer available in School A as a restructuring of the restaurant was taking place which meant that there would now be a Chef in School A and thus no need for a catering manager.   The respondent stated that it offered the complainant a role in a different location ten minutes away from the current location.

The respondent stated that the Complainant wrote to the Respondent following this meeting stating that she did not wish to undertake any change in working location or other alteration to her terms of employment.   The respondent stated that they wrote to the complainant reiterating that the canteen in School A is “changing dramatically” and stating that they were seeking to utilise the Complainant’s experience and management skills in the best way possible.   By reply, the Complainant again stated that she did not want to change.   The respondent advised the hearing that they did then look at the possibility of making the complainants role redundant given that they had no role for a catering manager within school A and given that the complainant had made it clear that she did not wish to relocate to site B ten minutes away.   The respondent told the hearing that they started looking into this possibility but received legal advice to the effect that they could not make her redundant if they had alternative work available for her. The respondent stated that they did have alternative work in a different location which they again offered to the complainant clarifying that redundancy was not an option while alternative work was available.    The respondent told the hearing that the offer of the alternative role was made a number of times and stated that its letter of the 12th of November 2018 clarified that all of the complainant’s terms and conditions were to remain the same in the new location and role.  

The respondent advised the hearing that this alternative work was at a different location which was ten minutes away from school A where the complainant had been working. Th respondent stated that the complainants terms and conditions were to remain the same and that it had even offered to pay her the additional travel costs incurred due to the new location being ten minutes further to travel.   The respondent stated that the complainant refused this offer and would not even consider the new location even refusing to go and have a look around the site to see if she might like it.

The complainant submits that her refusal to move to location B was in part due to the fact that she understood that her terms and conditions were going to change and that she would be getting less hours and less wages.     This is not supported in the formal documentation but the complainant states that Ms. B in an informal meeting had told her that she did not even have chefs on the high wage that the complainant had been on. Ms. B at the hearing also referred to the fact that the complainant’s payslips indicated that she was being paid for a 40-hour week but he respondent contends that there were not 40 hours of work available in the school on a weekly basis.     The respondent also stated that the complainant appeared to be on a very high wage and so it had sought additional documentation from the transferor in respect of the complainants salary as it needed to ascertain the complainants actual working hours and rate of pay.     The issue of hours of work and rate of pay does not appear to have been clarified in the normal correspondence between the parties.

What is written in correspondence here does not appear to be the full story as both parties agree that other informal meetings and chats took place between the complainant and respondent where these matters were discussed but neither party presented any record of these meetings or chats so it hard to say whether a different position was put forward in those meetings and chats as opposed to the position on paper in formal correspondence.   There appears to be some difference in the understanding between the parties as to the complainants terms and conditions in the proposed new location of locations B at least in the initial stages.  

Having said that I note that the respondents correspondence dated 12th of November 2018 clarifies that the complainants terms and conditions were to remain the same apart from the change in location.

The respondent admits that there was some confusion over whether it was going to make the complainant redundant given that her role was no longer available in the school but stated that after obtaining legal advice they were made aware that they were obliged to offer the complainant alternative work if alternative work was available before making her redundant.   The respondent stated that it had been clear form the very start that the staff structure of the school restaurant would be changing and that it was going to employ a chef which would remove the need for a catering manager.   The respondent stated that all staff were made aware of this change in structure and that the effect of this was that there would no longer be a need for a catering manager in school A.

The respondent stated that it engaged with the complainant from the very start but that the complainant refused to accept any change despite the fact that her role as it had existed in the school was no longer available.     The respondent stated that it had looked into the possibility of redundancy but had received legal advice that it could not make the complainant redundant if it could find alternative work to offer her.    The respondent stated that there was a delay in coming to this conclusion and stated that it had paid the complainant a month’s wages for the month of September despite the fact that no work was done by her in this month.  

The respondent stated that it had then placed the complainant on temporary layoff while it tried to work out the options available.   The respondent stated that part of the delay was due to the fact that it was awaiting outstanding documentation from the transferor in respect of the complainants salary and records of same from the previous three years as she seemed to be on an unusually high rate of pay.   The respondent acknowledged that this had left the complainant without work and without pay for the month of October but stated that the offer of alternative work was made again on 12th of November but was again refused by the complainant.  

The respondent stated that it had during informal meetings and negotiations offered the complainant alternative work in location B which was 10 minutes further than her previous location. Witness for the respondent Ms. B told the hearing that the respondent had acknowledged that this was a 10 minute further commute for the complainant and that it had offered to pay the complainant the cost of the additional travel. The complainant did not dispute this. The respondent added that the complainant had refused to accept any change and that she was asked to give the new location a try to see if it suited her and she was asked by Ms. B to go and have a look around the new location, but she refused to even do that.

It is clear that there was a lot of correspondence between the parties, but it is also clear that there were some delays on the part of the respondent in replying to the complainant and in clarifying the position for the complainant.    However, in order to prove that she was constructively dismissed I must be satisfied that the complainant meets the contract and/or the reasonableness test.

The complainant submits that the respondents proposal to change her place of work to another location albeit only 10 minutes away from her usual place of work amounts to a breach of her contract of employment a breach which she states goes to the heart of her contract. The complainant also submits that the respondent also intended to change her hours of work and rate of pay in the new location, but no documentary evidence has been adduced in support of that assertion and it seems to be a matter which could and should have been explored further by the complainant before resigning.   In addition, I note that the position in respect of pay and terms was clarified by the respondent in correspondence to the complainant dated 12th of November 2018 where it stated “all terms and conditions will be the same “.

Thus, the issue of pay and conditions was clarified by the respondent a month before the complainant submitted her resignation and so could not reasonably have contributed to her reason for resigning.

As regards the respondents proposal to change her work location and her assertion that this amounts to a breach of contract the respondent in its evidence has stated that the reason for the change of location was due to the fact that the structure of the school restaurant was altered at an early stage as part of the tendering process and resulted in them hiring a chef. This the respondent states removed the need for a catering manager at school A. The complainant in advancing her case had not disputed the respondents claim that there was a restructuring and that they hired a Chef, nor has she disputed the respondents assertion that the hiring of a chef meant that there was no longer a role for a catering manager at school A.   It appears from the evidence adduced that the respondent did advise the complainant of the changes in the staffing structure before she transferred to them and that she was aware of this from outset.   Thus, it seems clear that the offer of the alternative location which the complainant submits amounts to a change in her contract has arisen from a change in staff structure and where her role was otherwise at risk of redundancy.

In cases of alternative work in redundancy situations employees are advised to consider reasonable offers of alternative work. It appears in this case from the letter of 12th of November 2018 that the only difference to the complainants contract being proposed was an alternative location ten minutes further and where the respondent had offered to pay for the additional travel costs.   The complainant in this case was offered a reasonable alternative which appeared to be on the same terms and conditions and although she disputes this, she has provided no documentary evidence or basis for this and has not shown any evidence of attempts to raise this as a grievance or issue before refusing the offer.

The complainant told the hearing that she wanted to return to work, however if this was in fact the case, I cannot see why she refused to engage in any meaningful way with the respondents proposals to provide her with alternative work albeit at a different location.    This location was only 10 minutes further and the respondent had asked the complainant to come to the location and see what it was like before refusing it, the complainant refused to consider the this and maintained her stance that she should be provided with work at school A in spite of the fact that she was notified on numerous occasions that her role no longer existed at school A due to restructuring and the hiring of a Chef.

S 6 (4) of the Unfair Dismissals Acts 1977-2015 provides that a dismissal which results wholly or mainly from redundancy is deemed not to be unfair.   However, in any redundancy there is an obligation on the employer to look at alternative work before making an employee redundant.   The respondent in this case had signalled that it would consider making the complainant redundant but stated that it was later advised that a redundancy situation did not exist if alternative work was available.     The respondent then offered the complainant alternative work which she refused on the basis that it was in a different location ten minutes away from her previous place of work.

The complainant is now seeking a finding that she was entitled to consider herself dismissed due to the respondent allegedly breaching her contract of employment and due to the respondents unreasonable behaviour.  The complainant submits that her contract did not contain a mobility clause while the respondent asserts that the complainant had worked for the transferor at different locations and not just at school A. The contract does state that her main place of work is at school A but remains silent on whether or not she works in other locations outside of the school.

While it is clear that the respondents actions were not perfect or ideal and that there were delays and some confusion in the process, I must take on board the fact that the respondent was engaging with the complainant and consulting her at every stage and that gaps in written correspondence appear to have been filled by face to face meetings and informal chats. I also note the respondents evidence that it had from an early stage offered the complainant work in a different location which she continuously refused to consider despite the fact that she was aware that her role no longer existed at location A. The complainant at the hearing stated that she would have considered this offer if it had been clarified to her that she would be working under the same terms and conditions in the new location i.e. that she would be getting the same wage and the same hours in the new location. I note that this was clarified in the respondents letter of 12th of November 2018. If it is the case that her resignation hinged on this matter it is surprising that the complainant does not appear to have made any efforts to clarify this matter before taking the irreversible step of resigning her employment.

In addition, I note that it was open to the complainant to raise a grievance in respect of this matter which she failed to do.

I am satisfied from the totality of the evidence adduced in this regard that the respondents actions in offering the complainant the same role in a different location ten minutes away when her role was no longer available in location A does not amount to a breach going to the root of the contract and under which she could consider herself to be constructively dismissed.

The complainant in this case also relies on the reasonableness test in submitting that she considered herself to be constructively dismissed and was left with no option but to resign her employment due to the unreasonableness of the respondent.

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“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.”

The complainant in this case was advised that her role was no longer available in location A. The complainant does not dispute this.   The complainant was offered her role at an alternative location which was ten minutes away for her previous location.   I am satisfied that this offer constitutes a reasonable alternative.     The complainant submits that it was not clear that she would be receiving the same hours and rate of pay in the new location, but it appears that she did not take any steps to clarify the position in this regard. In addition, I note the respondents correspondence of 12th of November 2018 which states that the complainant would remain “on the same terms and conditions”.       The complainant states that this was not clear and that if it had been clear that she would be getting the same terms and conditions she would have accepted the offer.   I note that the complainant did not utilise the grievance procedure in respect of this or any matter relating to her resignation.   The complainant resigned on the 11th of December without utilising the grievance procedure.

The Respondent in advancing its defence referred to the Employment Appeals Tribunal decisions of Conway v Ulster Bank Ltd. (UD 474/1981) (taken from Mary Redmond, Dismissal Law in Ireland, 2nd Edition), where the Tribunal found that the complainant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints”.

It was submitted that the fact the complainant resigned without ever engaging properly in the grievance process also proves fatal to her case. Furthermore, it is submitted that the complainant was given an opportunity to reconsider her resignation and declined.

In constructive dismissal cases, it is necessary to 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 also demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning.  

Based on the totality of the evidence adduced here I cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment without having sought to ventilate and resolve whatever grievance she had through the internal procedures.    The fact that she failed to do so negates any possible basis upon which her subsequent decision to resign could be regarded as a reasonable response to the situation.     I also note that the Complainant was given an opportunity to withdraw her resignation, but she declined to do so. It is the Respondent’s submission that the Complainant resigned and that she has not met the burden of proof required to establish constructive dismissal.

Having considered all of the circumstances and the evidence adduced in this case I 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 it such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. Accordingly, I find that the Complainant’s employment did not come to an end by dismissal and I declare this claim to be not well founded.

I find that the Complainant’s employment did not come to an end by dismissal and I declare this claim to be not well founded.