Complainant

Respondent

Anonymised Parties

A Sales Assistant

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-00030400-001

21/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030400-002

21/08/2019

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

CA-00030844-001

11/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030844-002

11/09/2019

The issues in contention concern the alleged Constructive Unfair Dismissal of a Sales Assistant by a Pharmacy Chain.

1:1       Unfair Dismissal complaint – CA-00030400-001

The Complainant was pleading a Constructive Dismissal case. The Employment had commenced in April 2017. Maternity Leave had been taken from April 2018 to January 2019. The Complainant had been posted to the KA Branch from April 2017 until March 2018 when she was posted to the GC Branch. On her return from Maternity Leave in   January 2019 she was again posted to the GC Branch.

While in the GC Branch the Complainant suffered intimidating and belittling treatment from Shop Manager, Ms.Xl. Several incidents were cited in evidence.

The Complainant tried on a number of occasions to raise the issue of Ms.Xl’s behaviour with the Respondent Principal , Mr.Xk. Her requests for meetings were denied and she felt that she was being ignored. Finally, on the 14th March 2019, she succeeded in having a brief conversation with Mr.Xk . He was not particularly receptive but told her to carry on and he would see what he could do about her concerns.

On returning home that evening, the 14th March, a Thursday, the Complainant became unwell due to stress and called in sick for the Friday the 15th. Later that day the Complainant saw the roster for the following week. She would be in the GC branch working alongside Ms.Xl. This was too much for her and she resigned her employment on the 18th March.

The Constructive dismissal was based on the clear foundation of the Respondent’s failure to address the Complainant’s stated concerns regarding the completely intolerable behaviour of the Manager , Ms. XL, towards her. Following the largely abortive meeting/conversation of the 14th March and the rostering with Ms. XL for the following week, the Complainant rightly felt that she had no options left but to resign. It was clear to her that there was no Internal resolution or proper Grievance procedure left to her.

At no stage in the week of the 18th March did the Respondent seek to have the Complainant reconsider her decision.

In summary under both the Contract and Unreasonable Behaviour Legal tests used in Constructive Dismissal cases the claim for Constructive Dismissal is well founded.

1:2       Terms of Employment (Information) Act, 1994 Complaint – CA-00030400-002.

The Complainant commenced employment on the 29th April 2017. An unsigned copy of a Contract of Employment was received on the 20th February 2018.

This is clearly a breach of Section 3 of the Terms of Employment (Information) Act, 1994 .

The Complainant seeks redress for this flagrant breach of her statutory rights.

2:1       Unfair Dismissal complaint – CA-00030400-001

The Respondent completely denied the claims made by the Complainant. The Complainant had always been a well-regarded employee. On her return from maternity leave in January 2019 she had been placed in the GC branch. This was nothing unusual as this was the Branch she had been in prior to her Maternity Leave. On her return she had discussed her working hours with the Principal, Mr.Xk, on a number of occasions and these had been adjusted to suit her requests. In February the Complainant had sought to speak to Mr.Xk but as he was busy with Pharmacy clinical work on the day, he had suggested that they speak later. At no stage was any issue of Bullying or Difficulties with Ms. XL ever mentioned to him. He had presumed it was a talk in relation to her hours that was being sought.

On the 14th March , a Thursday, in the KA Branch, the Complainant met with Mr.Xk , the Principal Director, and outlined her alleged difficulties with Ms.XL. The Respondent was concerned and asked the Complainant to be patient and her would see what he could do. It would be the following week before he could do anything and a follow up meeting was suggested.

He asked her if she was coming in on the Friday ,the 15th, which due to the upcoming Bank Holiday would be busy. She confirmed that she was . The Respondent then, later ,   discussed the issue with his colleague Mrs Xk , the effective Staff Manager ,and asked her to look into the allegations.

The Complainant failed to come to work on the Friday the 15th . She advised Mr.Xk that “She was sure that he would understand” her reasons. He contacted the Complainant and requested her to make immediate contact with Mrs.Xk, (suggested a meeting on Tuesday the 19t)h,) who was looking into the matter.

Nothing further was heard from the Complainant until her resignation on the morning of the 18th March - a Monday. This was a Bank Holiday as St. Patrick’s Day, the 17th had fallen on a Sunday.

As regards the Roster issue, the Roster for Staff is drawn up on a fortnightly basis and the disputed week was Week two of the cycle. The Pharmacy Chain is a small three branch operation in a Provincial Town and if the Complainant had come in on the Friday and made her issues regarding being in proximity to Ms XL known, she could easily have been accommodated in a different Branch. Changes among staff between Branches is commonplace and all are geographically close together.

In his text Message replies to the Resignation the Principal had made it clear that he was taken aback and expressed disappointment that his offer to seek a resolution, to investigate ,was not taken up.

In the Legal Submission the Respondents’ Legal Advisor pointed to the standard Legal tests of Breach of Contract and Unreasonable Behaviour. On neither ground was the claim sustainable and should be deemed Not well Founded.

2:2       Terms of Employment (Information) Act, 1994 Complaint – CA-00030400-002.

It was accepted that a written contract was not issued until the 20th February 2018. This was a Technical Breach of the Act, nothing material hinges on it and the Complainant was not at any financial loss as a result.

3:1       The Relevant Law. Unfair Dismissal complaint – CA-00030400-001

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

“For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

“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,…”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is 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 other performance.”

The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

“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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

“the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However , Legal precedents and principles allowed for , all cases rest on their own evidence and particular facts and I will now consider these.

3:2         Consideration of the Evidence , both Oral and Written, presented.

The principal witness for the Respondent was the effective Controlling Director of the business , Mr Xk. On balance I found him to be a credible witness.

In his evidence, which was open to full cross examination, he maintained that on the Thursday the 14th he had met with the Complainant and reassured her that her issues of concern with Ms. XL, the Manager, would be looked into and later confirmed that Mrs. Xk, his fellow Director, would speak to all parties early next week. It was a small operation across three Pharmacies in a Midlands Town, and he was familiar with all staff. He was concerned with the import of the Complainant’s allegations and was clear that he had to investigate. This was Thursday before a Bank Holiday weekend. He had asked the Complainant if she was coming in on the Friday the 15th which she confirmed she was.

She did not attend for work and there was little communication between the Parties. The Complainant texted to explain, regarding her absence, that she was “sure he understood her position”. A clear misunderstanding appears to have arisen here but taking the Legal Tests of Reasonable Employer Behaviour I found it hard to see what more the Respondent could have done in the time scale involved.

Considering he question of the Roster and placing of the Complainant in Pharmacy GC alongside Ms.X, this was an issue that could very easily been addressed on Friday the 15th .It was common place for staff to move around among the Branches and if the Complainant had specifically requested no to go the GC for the immediate future this could very easily have been arranged. As it was, she did not attend on the Friday ,the 15th, and the Roster issue was not raised with him.

The Text of Resignation on the morning of the 18th was a complete surprise to him. In his reply he expressed disappointment that his offer of investigation made on Thursday / Friday was not availed of.

From a strict legal point of view the Resignation made by the Complainant on a Bank Holiday morning might well be questioned. Legal precedent regarding “Heat of the Moment” resignations is that they should be treated with extreme caution by Employers.

In Redmond on Dismissal Law ; Bloomsbury 2017 at page 495 the author states when considering Resignations

“However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges or where the employee was unwell at the time. the intellectual make-up of the employee may also be relevant”

Considerable case law is quoted by the Author in support of this view.

In this context an offer of further talks, after a few days cooling off, with the Complainant might well have been warranted.

However, she was clear in her own evidence that in her view the relationship with the Respondent had failed as they had not adequately addressed, in her mind, the Ms XL issue and she wanted out. In a subsequent Text of the end of April she confirmed her resignation as “ unfortunately GC ( The Disputed Branch) did not work out”.

There had been verbal contacts since January on a regular basis between the Complainant and the Respondent Principal regarding her hours of Work which had been altered to suit her requirements. The Principal Mr.Xk was very clear that the meeting of the 15th was the first time he had ever been made aware of any issues with Ms.XL. It is important to place the situation in context – this was not a major employer but a small scale 3 Pharmacy operation where all staff were familiar with each other across the Branches. It was hard to see the argument , in a Duty of Care contractual context, that Mr.Xk had in some way been negligent in not seeing ,before being advised by the Complainant, any alleged issues between two of his staff,

The requirement , now almost a formal requirement, for the Employee to avail of Procedures prior to a Resignation is also in question. I found it hard to see why it was necessary to formally end her employment when she was effectively out on Sick leave. There was nothing to prevent her continuing on sick leave while to Respondents’ Investigations continued.

The Resignation must be seen as premature in this context.

From the Oral evidence there was nothing to suggest that the Respondent would not have allowed the Complainant to retract her early morning of the 18th text resignation. There had been a good personal relationship between the Parties prior to the Resignation. The Complainant did not seek to make further contact to change her mind.

3:3         Conclusions – Unfair Dismissals Complaint.

Based on the Legal Tests of Unreasonable Behaviour and Breach of Contract I have to find in the Respondents favour but his balanced by the Heat of the Moment resignation.

However, the Complaint was one of Constructive Dismissal and on the basis of the Two Tests above it has to fail.

The Unfair Dismissal complaint – CA-00030400-001 accordingly fails.

3:4     Terms of Employment (Information) Act, 1994 Complaint – CA-00030400-002

There was no dispute here . A Technical Breach of the Act occurred.