Complainant

Respondent

Anonymised Parties

A Cook

A Creche

Representatives

Appeared in Person

David Gaffney, Gaffney Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977-2015

CA-00031194-001

30/09/2019

This claim concerns a claim for Constructive Dismissal following an almost two-year history of employment.

The Complainant, a Professional Cook, presented as a Lay Litigant and presented her case by way of oral submission.

The Respondent operates a Creche and was represented by their Solicitor. A written submission was shared with the complainant and the adjudicator at hearing.

The claim is denied.

The Complainant commenced work with the Respondent Creche on 5 October 2017. She worked a 20-hour week on a 9 am – 1pm basis in return for nett pay of €640 .00 per week. The Complainant submitted that she was forced to leave her position on 30 September 2019.She found new work on December 9, 2019.

In her written complaint, the complainant outlined that together with her husband she was in the process of pursuing a Family Adoption. This required attendance at designated meetings for which she understood she was to be facilitated in paid time off.

The Complainant was surprised to note that she had been deducted two hours pay without her consent.

The Complainant submitted that she had tried to source information from several advisory bodies on her rights in this regard. She attempted to appraise her employer of these rights but was accused of threatening her employers.

On September 27, 2019, the complainant handed in notice of her intention to leave the employment due to the associate stress. She was requested to reconsider.

The Complainant sought to explain her rights as validated by her advisors, but she believed that she was not heard. She continued with her plan to leave employment and refrained from working her notice as requested. She wished to resolve the matter at the WRC.

Complainants Evidence:

The Complainant is a qualified Cook and submitted that she loved her job.

Following a review in September 2019, the complainant received an hourly pay rise of €1.00.

The Complainant has sought leave to attend specific personal meetings scheduled for September 12 for which she understood that she was permitted time off.

On September 24, the complainant was subsequently informed that she was not to be paid for these two hours and tried to argue her case to be paid, before she was accused of threatening her employer. The Complainant expressed a strong view that she was entitled to be paid for these hours.

This caused her stress and she resigned her position on September 24.

Please accept this letter as my formal notice of resignation from X effective from Tuesday, October 4

The Complainant included a copy of a letter from her Solicitor which she had given to her employer.

She chose to resign as she was informed by the respondent that she couldn’t continue to work at the premises if she resorted to lodging a complaint at WRC.

The complainant confirmed that she was requested to consider her decision to resign but by then she had begun to feel ill and upset by this.

On September 27, she went to see her Doctor and left the matter lie until the following Monday.

She then confirmed that she was leaving but did not give a reason.

She was 8 weeks out of work before obtaining new work in December 2019. The Complainant stated that she had received a reduced DSP payment of €90 per week.

The Complainant submitted that she was left with no choice outside of her resignation.

During cross examination, the complainant confirmed that she had wanted to make a formal complaint rather than a Grievance. She confirmed that she had been paid on leaving until October 4. She had intended on making a complaint on her deduction in wages as it occurred.

The Complainant denied that she had left her job voluntarily.

In response to the Adjudicators questions on loss, mitigation and on remedy sought, the complainant stated that she just wanted her two hours pay to resolve matters. The Respondent requested a break to consider this and offered to cover this request. the Complainant requested some time to seek advice from her partner and returned to the room and refused the offer.

The case moved on from there.

The Respondent denied the claim for constructive dismissal. The Respondent employed 38 workers and relied on a 6 weekly interval reviews to aid communication.

The Respondent Representative raised a Preliminary Argument on the absence of a written submission in support of the submitted claim. The Respondent submitted that Article 5 of WRC Investigative and Adjudication Procedures had been forsaken by the complainant and she had not provided the mandatory statement of claim in support of her case.

He argued that the Respondent was prejudiced by the omission in a mandatory procedure.

The Respondent submitted that the complainant had not exhausted all internal procedures prior to her resignation. She did not utilise the grievance procedure and this should prohibit her claim for compensation. The Respondent sought details on the events relied on by the complainant in her claim for constructive dismissal, which was denied. The Complainant had also been over paid by 5.2 hrs on leaving.

The Respondents Representative outlined that the Respondent was aware of the complainant’s family circumstances but had struggled in their interpretation of the presiding Legislation on whether paid leave was permitted in such unique circumstances.

The Respondent recalled the letters submitted by the complainant which prompted her request for time off and had explained that she would not receive this as paid time and would be deducted. The Respondent recalled that the complainant expressed “I kind of thought that ok “in response.

The Respondent had taken external advice and presumed that their interpretation of the law was correct and acted accordingly by applying a deduction in wages.

At hearing, The Respondent representative went through the presumed ambiguities in the respondent interpretations in the legislation. He submitted that this was not a claim under that legislation and instead was a claim for constructive dismissal which was fatally flawed by the lack of reliance on the internal Grievance procedure.

Respondent Evidence

The Respondent denied that the complainant had been placed under pressure to resign or that she was threatened in the face of seeking to resolve her grievance.

In outlining the chronology of events, the Respondent confirmed that she had received copies of the complainant’s attendance at a meeting to address a family matter.

The Complainant had been deducted 2 hours pay and was unhappy when this happened. It was the respondent position that she was aware of this in advance.

The Complainant indicated that she wished to resign and the respondent in seeking to keep a good employee reached out by way of a letter dated September 25. In this letter, the respondent addressed their interpretation that time off at the meeting was the sole preserve of her husband and not her. The Respondent reminded the complainant that she would be facilitated in her attendance if she wished by unpaid leave or annual leave. The Complainant was asked to reconsider her resignation on that day and utilise the grievance procedure to “have this matter addressed formally “

The Respondent met with the complainant on September 27, where she presented a Solicitors letter dated September 26 which stated a legal interpretation of an Act. The Complainant told the respondent that she did not want to leave her job but wished to secure paid leave to attend the meetings. The Respondent undertook to investigate it again and revert by the following Monday.

Later that day, the Respondent was informed by her Supervisor that the complainant was leaving. She approached the complainant who told her that she had called her husband, who in turn had called her Solicitor who state “he didn’t know what part of the letter the employer did not understand “The Respondent sought again to apply the Monday response time.

The Complainant said that she was stressed and was going to see her Doctor. The Respondent reassured her that her job remained open for her and asked for feedback post the Doctors visit.

On Monday, September 30, the complainant confirmed that she was not coming back to work.

The Complainant did not wish to cross examine the respondent witness.

In response to the complainant’s clarification of the remedy sought by her, the respondent took a break and made a without prejudice offer of resolution by offering to pay the two hours owed to the complainant. The Complainant consulted with her partner and refused the offer.

The respondent concluded by expressing a regret that the employment relationship had ended so quickly in the case the complainant was highly regarded. They concluded by re-affirming that it was not a constructive dismissal.

I have given some careful thought to the circumstances of the case. I listened carefully to both parties’ presentations and I have considered the written submissions.

Preliminary Issue: Written submission:

I appreciate that the complainant was formally requested to lodge a written submission in the case in advance of the hearing. This is particularly relevant in this case of a claim of constructive dismissal, as the burden of proof rested on the complainant.

On the complaint form dated September 30, the complainant was represented by a Solicitor. On the day of hearing, she presented alone, her partner remained outside the room, by choice.

I would have appreciated submission of a written submission in advance as it always aides my preparations and guides me. However, while the absence of a written submission is unfortunate and proved a point of contention at the commencement of the hearing, I concentrated on the oral evidence of the parties followed by an opportunity for cross examination. The vacuum in submission, while regrettable had not undermine the claim. I proceed on that basis.

Substantive case

The complainant has claimed constructive dismissal in this case. Her claim was received on the day of her dismissal at 11.59, several hours post her confirmation of departure by phone.

Section 8(2) of The Unfair Dismissal Act provides that

2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,  

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.

The claim was lodged on the day of dismissal.

Section 1 of the Unfair Dismissals Act 1977 recognises an involuntary termination of employment as

S.1(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 .

This place the burden of proof on the complainant in this case and it is a high burden.

The Inquiry addresses both tests.

1. The Contract Test

The Complainant must argue “entitlement “to terminate the contract

This is reflected in the words of Lord Denning in Western Excavating (ECC) ltd V Sharp [1978] IRLR 322

“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 further performance “

He goes on to point out that:

But the conduct must in either case be sufficiently serious to entitle her to leave at once. Moreover, she must make up his mind soon after the conduct of which he complains, for if she continues for any length of time without leaving, she will lose the right to treat himself as discharged. She will be regarded as having elected to affirm the contract.

In this Lord Denning stated a preference for considering a claim for constructive dismissal reliant more on the “contract test “He pronounced an apprehension regarding the second test of “reasonableness “

It has led to acute differences of opinions. It has led to findings of constructive dismissal on the most whimsical grounds “

The Contract been applied in Ireland In Higgins and Donnelly Mirrors ltd UD 104/1979

2 Reasonableness Test

This test refers to a consideration of the conduct of both parties with a emphasise on an objective assessment to ascertain whether having regard for all the circumstances, was it reasonable for the employee to have resigned?

It is provided for in Section 6(7) of the Unfair Dismissals Act

It has been applied in Conway V Ulster Bank UD 474/1981, Smith V RSA Ireland ltd UD 1673/2013 and Berber V Dunnes Stores ltd 2009 IESC 10

As I listened to the complainants account in this case, I was struck by how busy her life was and continues to be. She acknowledged that she was very happy in her work prior to her difficulties surrounding time off for the meeting of September 10. There were more meetings to follow, but these are the only meetings before me.

The Complainant had a very strong view that she should be paid for her attendance at these meetings. The respondent had refused in the first instance and on foot of the complainant’s resignation, offered to cover the time on an unpaid or annual leave basis.

The Solicitors letter strengthened her resolve in this.

The Complainant expressed a view at hearing that she was actively dissuaded by the respondent from processing her request for paid time off. On considering the respondent evidence, I was struck by this was the first time that this type of request had been raised and while they had taken advice, certain ambiguities remained which prompted the deduction in pay.

Two contracts were submitted by the Respondent in this case.

7 June 2018

13 November 2018

Both documents were signed by the complainant and both documents detailed a Grievance procedure.

The Grievance procedure at section 17 of the latter contract sets out an elaborate pathway towards a resolution of a work-based issue. This permits representation and recourse to a third party, presumably the WRC.

For me at least, this provides a valuable tool for an employee in difficulty. I could not establish if the complainants Solicitor had been furnished with either contract of employment as I would have expected that this first step would be exhausted prior to referral to third party.

The issue at the heart of the case is the unpaid two hours, the respondent countered that the complainant had left having received an overpayment of 5.2 hrs and these hours had at any rate been subsumed in that debt.

I did not identify that as a helpful argument. While I acknowledge that the respondent went on to offer to pay for the lost hours, the complainant was entitled to refuse this offer.

An employment relationship is based on a mutual trust and confidence base and I understand that that base was shaky for the complainant during her appeal of her lost hours. However, I believe that she was overwhelmed by the multitude of events she spoke about at private hearing and she did not take the time to resolve her grievance using the permitted tools of the grievance procedure.

I cannot accept her contention that her employment was threatened by the Respondent. Instead, I accept that the respondent was struggling in seeking to find a correct interpretation of the law which if settled would serve as a precedent at the workplace. It was important to have this clarified. In addition, given that recourse to third party is permitted in the grievance procedure, I see no reason for the respondent to resile from this forum.

This door was not closed on September 27 or September 30. I was struck by the high regard each party had for the other and it is regrettable that events turned as they did.

Having considered the actions of the complainant and the respondent in this case, and while I have enormous sympathy for the complainant, I must find that the behaviour of the respondent was not reprehensible so as to consider herself dismissed. She left without exhausting the company grievance procedure and while she honestly believed that she was left with no choice, an objective analysis must conclude that the leave sought was not referenced in the contract and was undefined territory. This prompted a period of uncertainty and ambiguity needing a firm declaration. The Respondent was still engaged on that case Sept 27-30.

Given the previous good staff relations, I believed this could have been resolved via representation. therefore, I have not identified a repudiatory breach of contract. I have not identified that the circumstances complained of were justification for the complainant’s mid procedure departure.

Finally, the complainant wanted to address the two-hour deduction in her pay and may have been ill advised on the proper pathway to address this. Nonetheless, the complainant was formally asked to give the respondent a chance to resolve her issue of paid time off to attend meetings when they met on September 27. I found her lack of participation in awaiting the deliberative outcome on Monday, September 30 to be unreasonable and fatal to her claim for constructive dismissal.

I have found that the complainant was not constructively dismissed as she had failed to exhaust reasonable options prior to her dismissal.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant has not reached the burden of proof required in this case. Her claim for constructive dismissal is unsuccessful. She has not been constructively dismissed.