ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023584

Parties:

Complaint(s):

Date of Adjudication Hearing: 29/10/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

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

Ca-00030344-001

Unfair Dismissals Act 1977

Summary of the claimant’s position

The claimant commenced working for the respondent in March 2017 as a Supervising Pharmacist

The claimant submitted that he never had any complaints from respondent and he received his bonus that year without any question. In January 2018 after thinking things through over Christmas, he decided that he wanted to go on to the relief pharmacist team as his current location was causing him to suffer burnout (the average length of service for supervising pharmacists at this store is approximately 12 months) through the volume of prescriptions as it is one of the busiest stores in Ireland

.

The claimant made the following points;

1. Difficulty in getting rest breaks
2. He was not allowed to leave the premises to have a break
3. He was informed that he was not entitled to a break
4. He raised the matter with the respondent despite a meeting nothing happened
5. one day in June 2018 he was sat in the canteen eating his lunch when the assistant manager (t) came storming in asking him what he was doing
6. A few weeks later he had a face to face meeting with two of the managers from head office.

They stated that pharmacists were not entitled to take any break whatsoever.

G            he had no performance reviews

H            His shift patterns were changed without telling him

I              he had difficulty in getting his expenses and he was accused of over claiming

J             He eventually got some of these expenses paid but for some inexplicable reason others remain unpaid to this day.

4. A few days later the claimant was informed that he was being investigated by Respondent as he had left the pharmacy between 4.53pm and 5pm on 24 February 2019.
5. The claimant submitted that the behavior of the respondent left him with no option but to leave his employment.

The claimant stated that he subsequently took out a grievance against a manager

Summary of the respondent’s Position

A             commenced employment with the Respondent Company on 20th March 2017 as a Relief Pharmacist.

B             The Claimant's contract of employment refers to the Company Grievance Procedure and informs employees that the same can be in the company handbook and on the company intranet system.

C             The contract of employment is clear that both formal and informal avenues are available for pursuing grievances within the company.

D             At the time of his resignation, the Claimant was working as Temporary Supervising Pharmacist in the company location store. His annual salary was €65,892.00 per annum.

E              The Claimant resigned with the respondent on 28th February 2019.

F              In his Claim form, the Claimant attributes this decision to several issues.

G             One such issue related to his bonus which he did not receive in November 2018. Bonus payments in the Respondent company are discretionary in nature. There is no contractual entitlement to same.

H             The Company currently operates a discretionary bonus policy which sets certain performance standards for individuals, and receipt of a bonus payment is contingent with attaining those performance standards. The Claimant was informed that he was rated as non-performing in his September 2018 performance end of year review. He expressed his strong dissatisfaction with this result via email on 14th November 2018, upon receipt of which he was informed that he could appeal same, or alternatively lodge a grievance under the company grievance policy. The Claimant opted to appeal his end of year rating and was successful in his appeal. The Claimant's performance rating was overturned, and he was rated as performing. The Respondent heard the Claimant's appeal and overturned his performance rating. The Respondent can confirm that the Claimant received a bonus payment of €7114.65 in the February 2019 payroll, in line with the outcome of his appeal of his end of year performance rating. The matter was thus resolved, and no further grievance was raised on foot of same prior to the Claimant submitting his resignation.

G             The Claimant also informally raised an issue regarding the processing of payment for additional hours worked. This matter was not formally pursued by the Claimant internally but was rectified in the January 2019 payroll.

H             The Claimant was thus successful in relation to both aspects of the above and there was no formal process live within the Respondent company at the time of the Claimant's resignation on 28th February 2019, under the grievance policy or otherwise. It is also noteworthy that the Claimant gave three months' notice when he tendered his resignation in February 2019, such that his employment with the Respondent was due to terminate on 25th May 2019.

I              The Respondent notes that the terms of the Unfair Dismissals Act, insofar as the relate to constructive dismissal, permit an employee to leave their employment immediately, in circumstances where constructive dismissal is alleged, should they feel that the employer has acted so unreasonably that an expectation as to their continued employment would be unreasonable. While it is accepted that the terms of the Act do not demand an immediate resignation, it is noteworthy that the Claimant opted to remain in the Respondent's employment fora lengthy three months after his resignation. This is not indicative of an employee who viewed the actions of the Respondent to be so unreasonable as to render his continued employment untenable.

J              The Claimant did ultimately lodge a grievance after having already resigned with the Respondent company. His formal grievance letter was lodged on 4th April of 2019 and was a grievance against his Manager. That Manager was no longer the Claimant's Store at that point, having moved stores on 16th March 2019.

K             That the Claimant's expenses had been denied in March 2019 (again, after his resignation).

2019. As aforementioned, the Claimant lodged a grievance on 4th April 2019.

1. Section 1 of the Unfair Dismissals Act 1977 (as amended) defines dismissal in relate employee as, inter alia:

"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"

1. Considering this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that:

The employee was entitled to terminate the contract of employment by a demonstrated breach of contract on the part of the employer, or

The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

1. It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the Respondent's position that neither criteria have been met.

Contractual test

4. The Respondent fulfilled its contractual obligations, implied and otherwise, always. While it is noted that the Claimant did not receive his bonus in November of 2018, the Respondent's bonus is discretionary in nature and not contractual. In any event, the Respondent operates an appeal mechanism whereby an employee can appeal their end of year performance rating, and the Claimant was successful in his appeal, and his bonus was paid prior to the tendering of his resignation. Considering this, it is the Respondent's position that the termination of employment fails on a contractual test to be a constructive dismissal.

Findings

Both parties made submissions at the hearing

I find that the claimant tendered his resignation to the respondent

I find that the claimant had, during the period of employment with the respondent, difficulty getting his breaks

I find that when he appealed to his superiors his breaks were granted

I find that while I accept that one occasion this might happen based on the submission this was a regular occurrence.

I find that the respondent at national level should have taken steps to address this issue

I also find that the claimant had difficulty with various other matters such as expenses and he was threatened with disciplinary action for leaving a branch unattended.

I find that while this was investigated the claimant had gone next door to clarify a customer’s prescription with a doctor.

In the matter of Kenouche v Four Star Pizza, UD962/2008 the behavior of the employer and the reasonableness of the employee’s resignation is clearly laid out

“the conduct (of the employer) referred to in the act cannot be pretty or minor but must be something serious of significant which goes to the root of the relationship between the employer and the employee. Consequently, the Tribunal must look at the conduct of the employer and the reasonable of the resignation by the employee”

I find the claimant was having continuous difficulties with obtaining his breaks along with other matters.

However, I find that claimant did work his 3 month’s notice and he should have utilised the procedures contained in his contract of employment to raise his grievances

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.

I find the claimant worked his full notice and, on that basis, I cannot support his complaint for constructive dismissal.

Dated:   20-03-20

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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