Complainant

Respondent

Anonymised Parties

An Employee

A PLC

Representatives

Padraig Hyland Padraig j Hyland & Co Solicitors

Sherwin O'Riordan

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-00031169-001

27/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031169-002

27/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031169-003

27/09/2019

The complainant withdrew CA-00031169-002, CA-00031169-003.

The employee was employed by the Employer as a part-time deli counter assistant working approximately 30 hours weekly. Her employment commenced on the 16th January, 2018, until the 23rd August, 2019. She was paid an hourly rate of €9.55 when she commenced. Her contract of employment was indefinite in duration. The manager at the time of commencement of employment was Mr. ED

The Employee’s working week initially consisted of working an average of 30 hours weekly over approximately 5 days and she was responsible for opening the deli counter in the mornings at 6am.

In or about May/June, 2018, a new store manager started, by the name of A. Shortly thereafter he hired a deli manager, Ms AK, who took over the opening of the deli in the mornings. Shortly after Ms. AK commenced as deli manager, the employee’s working hours were reduced to approximately 24 hours weekly. The Employee raised no issue with the reduction in her hours.

Ms. AK, the new deli manager, implemented a number of new policies. These included changing dates on deli food so that they could be used and served to customers for a longer period of time than previously, in order to reduce waste. A further new process prompted by the Employer involved using a cup of boiling water to mimic the appropriate temperature of chicken rather than take the time to measure the chicken, with the temperature probe being put into the water. Further, food would be left in the hot counter for longer than the 90 minutes maximum it was permitted to remain there prior to being disposed of pursuant to the food health and safety policy the Employee was trained in.

The Employee raised concerns about the procedures sought to be implemented by the new deli manager, and indicated she would not partake in procedures, which were contrary to best food hygiene practise, and that she would only comply with the correct guidelines in terms of food wastage. She was informed by Ms. AK that she was not to do this as it affected waste and profits.

The Employee was amongst a number of staff members who made numerous complaints to the store manager, A, and also to Mr NN following his commencement as store manager in or about September, 2018, in respect of the new practises sought to be implemented and the risks, hygiene and safety issues associated with same.

In or about September, 2018, a new staff member, D was hired as a deli counter assistant and given full-time hours. The Employee’s hours were again reduced, to approximately 18 hours. The Employer raised a concern over this with Ms EB, assistant store manager, and the Employer’s average weekly working hours of approximately 24, were restored thereafter.

The new member of staff, D, complied with the directions in respect of the unsafe practices the Employee had raised concerns in respect of and the practises continued. The Employee, therefore, raised her concerns with the Employer’s area manager, P, who informed her that waste was down and profits were up and the matter was not addressed. The Employee understands the aforementioned practises continue to this date.

On the 16th December, 2018, the Employee had an accident at work whereby she was caused to slip and fall owing to a leaking fridge and she was absent from work for 6 weeks. The employee is bringing a personal injuries claim, in respect of same.

When she returned to work in or around the last week of January, 2019, the Employee was informed by Ms. AK that she would be working weekends as she ‘had Christmas off’. This was contrary to the normal rostering whereby the weekend shifts would ordinarily be shared between the deli assistant staff.

After her return to work, the Employee was made to feel very uncomfortable and began to dread going into work and regularly found herself to be tearful going in and upon leaving.

Ms. AK and the newer Employee, D, were very cold and dismissive of the Employee, often not saying hello or even speaking with the Employee. The Employee was acutely aware that D was not as dismissive or cold when Ms. AK was not present. The Employee felt ostracised and isolated from her colleagues and felt that she was being victimised for having raised concerns about her Employer prioritising profit over food safety standards.

On the 30th June, 2019, at approximately 1.30pm, the Employee was engaged in her duties when blue bottle flies were in the vicinity of the uncovered food items. The Employee, therefore, covered the deli food so that the flies would not land on the food, which was for sale to customers for consumption. The Employee advised Mr NN that she had covered the food because there were flies flying around the area and asked if that was in order, and he said that was fine.

Later that day, at approximately 2.30pm, the Employee received a telephone call from the deli manager, Ms. AK, informing her that a complaint had been received that the Employee had closed the deli early, at 1.30pm. The Employee was never advised who had made the complaint, other than to say it had been ‘a friend of hers’. The Employee explained that she had not closed the deli but merely covered the food because flies were around the food and that she had in fact continued to serve customers and informed her that if she checked the till roll, she could confirm this and that she recalled having served a customer at approximately 2pm. The Employee was due to take annual leave the following day and Ms. AK informed the employee that she would be ‘dealt with when she gets back off holidays’. This caused significant distress for the Employee during her holiday and she was filled with a sense of dread about returning to work, particularly during the final days of her holiday.

On the Employee’s return to work on the 15th July, 2019, Ms. AK asked her to sit down and have a chat about the ‘incident’. Ms. AK said she had reviewed the CCTV footage and had seen no fly. The Employee advised Ms. AK that the store manager was aware she had been covering the food because of flies and had given her permission to do so and that she always prioritises food hygiene. Ms. AK informed the Employee that she had a 10 strike system and that this was her first strike. Ms. AK instructed the Employee to sign a Colleague Incident/Counselling Form that she had completed. The Employee advised she did not want to sign the form as she did not agree with what was stated and that she had done nothing wrong but Ms. AK demanded she sign it and told her that she had to and thrust the form and a pen in front of the Employee. The Employee was pressurised to sign the document and was conscious that she had a number of tasks to complete before finishing her shift, which she would be reprimanded for if she did not complete them. Feeling that she had no option but to comply, she signed the document.

Following the aforementioned, the Employee saw on the 15th July, 2019, that her hours had been reduced again, this time to 16 hours per week for the week commencing the 22nd July, 2019, on the weekly roster. The Employee approached the store manager, Mr NN, who was behind the counter and asked him what the situation was with her hours because they had been reduced to 16. He said he did not know and that she would have to see Ms. AK. The Employee was extremely upset and went back to the deli and into the kitchen. Mr NN approached the Employee at the deli and followed her into the kitchen. He told her not to shout when he was serving customers but there had been no customers in the vicinity at the time and Mr NN had not been serving any customers, which she informed Mr NN of. He told the Employee he would ‘sort it’.

The Employee received a text message from Ms. AK later that afternoon stating that she could not guarantee the Employee four days a week, staying ‘we will discuss this tomorrow’. This was notwithstanding the fact that the Employee at that stage had been working an average of three days a week and not four days.

On the 16th July, 2019, when the Employee started her shift, Ms. AK did not speak to and ignored the Employee for the first hour until she brusquely instructed her to do a job. When the employee went to clock out for her break, Mr NN was passing and asked if the Employee wanted to have a discussion about her hours there and then with Ms. AK and he went and got Ms. AK. The Employee waited in the store room. Ms. AK and Mr NN returned and stood in front of the Employee. Mr NN asked what the problem was, and the Employee said her hours had been cut by almost a day and she would struggle on only 16 hours a week to meet her commitments and provide for her family. She was told by Ms. AK that the reason her hours were being reduced was that her performance was ‘shit’ and that if she didn’t like 16 hours, ‘wait until next week’ when she would only ‘have 10 hours’. The Employee said that she was only looking for a further 8 hours and just wanted them restored. Ms. AK simply stated ‘no’. The store manager, Mr NN was present but made no meaningful contribution to this exchange, nor did he take issue with the manner in which Ms. AK spoke to the Employee nor the threats made. The Employee became extremely upset and felt deeply humiliated and felt angry and emotional at the treatment and victimisation she had been subjected to over a prolonged period. There was another member of staff in the stockroom during the aforementioned exchange, Ms EC

The Employee was crying and upset and took her belongings and went to exit the premises, at which point the store manager, Mr NN, shouted loudly after her ‘are you resigning’ and ‘is this your resignation?’ a number of times.

On the 17th July, 2019, Mr NN emailed the Employee referring to their ‘conversation’ and asking her to confirm that she will not be returning to work. The Employee replied stating that she would not call what had happened a conversation and she had been pushed out the door, and referring to the manner in which she had been treated for the previous year. She also requested a copy of her last review form. Mr NN replied attaching the review form and asked her to note that “there has been a few conversations and coaching forms done in the past number of months”. The Employee replied asking for the review form to be forwarded and also the paperwork from the conversation and notes in respect of the concerns raised. He replied stating that he could discuss these in person if she wanted to see them and also “discuss your future as you haven’t formally left yet”.

The Employee had been struggling with the manner in which she had been treated and was deeply humiliated and stressed. She attended her doctor in relation to her symptoms and was certified unfit for work owing to the work related stress, from the 16th July, 2019, to the 27th August, 2019. The Employer does not pay sick pay to its Employees and the Employee applied to the Department of Social Welfare for illness benefit, which was approved and she received illness benefit for approximately six weeks.

The Employee submitted weekly certificates to her Employer and was due to return to work following her certified sick leave. However, she subsequently learned that she had been allocated zero hours for that week’s rota.

Given the situation that had been created by the Employer whereby the Employee was unable to carry out her duties of employment safely, where she had been victimised as a result of raising complaints about the unsafe practices being introduced, and where her working hours were consistently reduced, ultimately to zero, the Employee had no option but to cease working for the Employer.

Having previously raised her concerns with management, which had resulted in her hours being consistently reduced and her being subjected to humiliating treatment and victimised for having raised a grievance as outlined above, the Employee had no faith that the Employer would deal with these issues in any meaningful manner. The Employee emailed Mr NN, store manager, on the 23rd August, 2019, outlining her position and expressing that the Employer’s actions had left her feeling undermined and with no option but to leave her job.

No reply was received by the Employer whatsoever nor were any attempts made to address the issues either prior to or following the 23rd August, 2019, or to contact the Employee. Rather the Employee felt ostracised and victimised and that the actions of the Employer were a conscious and deliberate attempt to undermine her.

In total, the Employee earned approximately €230 per week.

The employee has filed a complaint against the employer pursuant to:

Section 7 of the Unfair Dismissals Acts, 1977-2007. The 1977 Act, as amended, defines dismissal as follows:

“Dismissal”, in relation to an employee, means—

(a)    the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)   termination by the employee of his contract of employment with his employer, whether 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” (emphasis added)

The Employee was put in an invidious position in circumstances where she raised concerns about food safety and hygiene, which resulted in her being reprimanded, undermined and scrutinized on an ongoing basis. Her hours were also reduced as a result of this and she was not afforded any fair procedures in the manner in which the Employer began taking issue with her performance.

The Employee had attempted to raise a grievance through the ordinary course with her manager, the store manager and the area manager but none of these addressed and instead, the Employee felt increasingly ostracized and singled out.

Section 6(2) of the Unfair Dismissals Act, 1977, provides that

the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(c)    civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness

The Employee became conscious that the escalation in the Employer’s treatment of her escalated after her return to work following the accident and indeed this was reflected in one of her reviews.

ii.             Breach of Employer’s Obligations

The Employee’s contractual hours were in the region of 30 hours weekly, which were reduced to a weekly average of 24. The contract of employment appended to the Employer’s submissions notes that the normal hours of work were 24 hours. At clause 15 thereof, it is stated that “the company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment or maintain you in full-time employment. You will receive as much notice as reasonably possible prior to such lay-off or reduced hours.”

In breach of the contract of employment, the Employer reduced the Employee’s working hours unilaterally and without any notice, reasonable or otherwise. In or about September, 2018, a new staff member, D, was hired as a deli counter assistant and given full-time hours. The Employee’s hours were again reduced, to approximately 18 hours. No prior notice was given of this and the circumstances provided under the contract, namely circumstances beyond its control, did not arise. The Employer clearly demonstrated it did not intend to be bound by the terms of the contract.

Again, on the 15th July, 2019, the Employee’s hours were reduced, this time to 16 hours per week for the week commencing the 22nd July, 2019, on the weekly roster. On the 16th July, 2019, Ms. AK said that the reason her hours were being reduced was that her performance was ‘shit’ and that if she didn’t like 16 hours, ‘wait until next week’ when she would only ‘have 10 hours’.

The final reduction of the Employee’s hours to zero following expiry of her certified illness absence, after having been absent owing to work related stress, further demonstrated the Employer’s position. The Employer was well aware that the Employer needed to work to earn a living and provide for her family and the situation was not sustainable.

The conduct of the Employer in reducing the Employee’s hours unilaterally without any notice and without fair procedures were in flagrant breach of the Employer’s own policies and indeed the terms of the contract and it became abundantly clear that the Employer did not intend to be bound by the terms of the contract that is appended to the Employer’s submissions. Cosgrave v Kavanagh Meat Products UD6/1988 is authority for proposition that, as stated at paragraph 18.111 of Murphy and Regan on Employment Law, the breach of contract must be...

One, which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

Knowingly and deliberately restricting the Employee’s ability to earn a living by unilaterally reducing her working hours, particularly in the absence of fair procedures, was a clear breach of a fundamental aspect of the contract and of the employment relationship, which operated to undermine and penalise the Employee. Indeed, at paragraph 18.111, Murphy and Regan on Employment Law note that “constructive dismissal may arise where an employer unjustifiably reduces an employee’s remuneration”. It is respectfully submitted that the reduction of the Employee’s working hours without notice or without the circumstances in the contract of employment arising, is analogous to reducing her remuneration.

Notwithstanding the Employee having raised her grievances with her direct line manager, the store manager and indeed having raised concerns with the area manager, as clause 17.3 of the contract requires, she was informed in no uncertain terms that profits were up and food waste was down and, in relation to her hours, her grievance was abruptly dismissed and in fact she was threatened with further hour reductions.

iii.            Grievance and/or Disciplinary Procedures were not followed by Employer

While the contract of employment refers to grievance and disciplinary procedures, the reality is that the Employee was not provided with a copy of such policy and she was not given a copy of her written terms of employment, merely asked to sign same.

Notwithstanding the Employee having repeatedly raised her concerns about the food safety processes being implemented and the risks associated with same, together with her weekly hours, these were dismissed immediately and in fact the Employee was deliberately ostracized and penalized for having raised such matters.

The manner in which the Employer reprimanded the Employee for an alleged breach of the company policy was lacking in any fair procedures including the principle of audi alterim partem. Ms. AK informed the Employee that she had a 10 strikes system and that this was her first strike. This is without basis in contract or fair procedures pertaining to disciplinary measures, unreasonable and out of proportion to any alleged wrong. Ms. AK instructed the Employee to sign a Colleague Incident/Counselling Form that she had completed. The Employee advised she did not want to sign the form as she did not agree with what was stated and that she had done nothing wrong, but Ms. AK demanded she sign it and told her that she had to and thrust the form and a pen in front of the Employee.

The actions of the employer were contrary to statutory requirements, fair procedures, and were unreasonable.

3. Redress

It is submitted that, when an award of compensation is being made, account must be taken of the extent to which the financial loss suffered by the Employee was attributable to an act or omission or conduct on the part of the employer.

It is well established that the “Financial loss”, in relation to the dismissal of an employee, includes:

…any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967-1991, or in relation to superannuation.

Financial Loss must therefore be considered under the following headings:

i.              Actual Loss

ii.             Future Loss

iii.            Loss of rights under protective legislation and superannuation.

                The employee has made every effort to mitigate her losses.

The Complainant commenced employment with the Respondent on the 16 January 2018 occupying the role of Deli Assistant. The Complainant was employed on a casual basis and typically worked between 8 and 48 hours per week.

In or around the beginning of May 2019, issues arose with regard to the Complainant’s performance. A Colleague Counselling Form was completed by the Respondent’s Deli Manager, Ms AK in respect of the Complainant’s performance on the 9 May 2019, which detailed the Complainant’s failure to follow food safety procedures. A meeting was held between the Complainant and Ms AK to discuss the issues forming the subject matter of this Colleague Counselling Form. During this meeting Ms AK highlighted the importance of the Complainant ensuring her work station was left in the appropriate condition.

A further Colleague Counselling Form was completed by the Respondent in respect of the Complainant’s performance on the 30 May 2019, which detailed the Complainant’s failure to complete her duties and engagement in poor hygiene practices, amongst other issues.

Difficulties with the Complainant’s performance continued throughout the summer of 2019 up until the 30 June 2019. On that date, an incident occurred whereby the Complainant refused to serve a customer of the Respondent and closed the Respondent’s deli counter one hour before the scheduled time. The Complainant was due to be on holidays for two weeks from the 1 July, before returning to work on the 15 July. During the Complainant’s absence on annual leave, Ms AK received a complaint regarding the Complainant’s refusal to serve food on the 30 June.

The Complainant was rostered to work 16 hours on the following week, commencing the 22 July 2019. The Complainant took issue with the hours she was rostered, and approached Mr NN, Store Manager of the Respondent, to discuss her concerns. This approach occurred as Mr NN was serving customers at the till area. Mr NN requested that any discussions of that nature be had in private with Ms AK present. The Complainant appeared dissatisfied with Mr NN response, and began swearing at him before returning to the deli area. Mr NN advised the Complainant that if she wished to discuss her hours, he would arrange that this be done in a private meeting between himself, the Complainant and Ms AK.

On the morning of the 16 July 2019, the Complainant attended for work. The Complainant apologised to Mr NN for the manner in which she had spoken to him on the day previous but articulated concern about her hours. The Complainant, Mr NN and Ms AK went to the Respondent’s storeroom in order to discuss the matter in private. During this discussion the Complainant questioned the cause of the reduction in her hours and was advised that it was as a result of the Complainant’s performance falling below standards. On learning that her performance had contributed to a reduction in her hours, the Complainant advised Mr NN that he could “shove his hot counter up [his] hole”, before gathering her belongings and leaving the premises. Mr NN sought confirmation of the Complainant’s resignation by email on the 17 July 2019. No such confirmation was received.

On or about the 19 July 2019 the Respondent received correspondence from the Department of Employment Affairs and Social Protection notifying it that the Complainant had applied for a social welfare payment on the basis of having been employed by the Respondent from the 16 January 2018 to the 16 July 2019. This correspondence referred to the Complainant as the Respondent’s “former employee”.

The Respondent also received a number of sick certificates from the Complainant, covering a period of absence from the 20 July 2019 until the 27 August 2019. On the 23 August 2019 Mr NN received an email from the Complainant stating as follows:-

“ As I was due back to work next week after been off with work related stress due to the harassment and criticism I received about my performance which resulted in my hours been [sic] cut, to then see I’ve been given 0 hours next week, has left me feeling undermined and I have been left with no option but to leave my job”.

Notwithstanding the correspondence received from the Department of Employment Affairs and Social Protection, the Complainant was consistently included in the Respondent’s rosters. The rosters prepared by the Respondent as a weekly projection of human resource hours. The Respondent’s rosters are often subject to change and are not definitive, as the Complainant is aware. The Complainant had not over the course of her certified sick leave been allocated any hours in advance. The basis upon which the Complainant alleges that the roster for the week beginning on the 26 August 2019 left her with no option but to resign from her employment on the 23 August 2019 is not understood.

LEGAL SUBMISSIONS:

It is the Complainant’s case that her resignation on the 23 August 2019 constitutes constructive dismissal. Constructive dismissal arises in situations where, because of the conduct of the employer, the employee was entitled to terminate his or her contract of employment.

The Complainant has stated in her Submissions that she had been given no hours for the week she was due to return to work from sick leave, and as a result had no choice but to leave her job. This is not the case. The Complainant resigned her position on the 23 August 2019 without having consulted with the Respondent and while she was absent on an extended period of sick leave. Had the Complainant communicated to the Respondent that she anticipated being fit to return to work, the appropriate action would have been taken to ensure that hours were assigned to the Complainant.

It is well-established that an employee that chooses to resign employment and claim constructive dismissal is obliged to exhaust the internal complaints or grievance processes before taking such drastic action. At paragraph 19.14 of Redmond on Dismissal Law, it is stated as follows:

“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 employer’s grievance procedures in an effort to resolve his grievance … Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning”

This well-established principle that it is incumbent on a complainant to exhaust internal grievance procedures prior to resigning has also been demonstrated in the cases of Conway v Ulster Bank and McCormack v Dunnes Stores.

The Complainant’s decision to resign from her position came without prior warning, grievance or complaint. The Complainant failed to ventilate any of her stated concerns in advance of tendering her resignation. It is submitted that the decision by the Complainant to walk away from her employment with the Respondent was taken in advance of 23 August 2019, and this is evidenced from the application made for social welfare payments on the basis of her employment ending on the 19 July 2019. This completely contradicts the Complainant’s assertion that the decision to resign came about as a result of her projected hours for a single week, and particularly in circumstances where she had been certified as absent on sick leave for the beginning of that week.

The case of Western Excavating (ECC) Limited v Sharp [1978], sets out the ‘contract’ and ‘reasonableness’ tests to be applied in cases for Constructive Dismissal. The ‘contract test’ recognises constructive dismissal where an employer is guilty of conduct which is a significant breach going to the root of the contract, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. There is no such breach in the within case. The ‘reasonableness test’ recognises constructive dismissal where an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer.

The Workplace Relations Commission decision of A Counter Manager v A Supermarket Retailer ADJ-00001070 considers the well-established two tests contained in the statutory definition of constructive dismissal; the first is the contract test, and the second is the reasonableness test. The former essentially deals with the idea that an employee can argue that he/she is entitled to terminate the contract, and the latter test essentially asks whether the employer (and the employee to a lesser extent) has conducted its affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer. If so, the employee may be justified in leaving. The complainant in that case was unsuccessful, despite having experienced significant changes to his contract of employment.

The Respondent’s Grievance Procedure is set out in its’ Handbook. The process is also referenced in the Complainant’s Contract of Employment. If the Complainant had a genuine grievance in respect of the roster for the week commencing the 26 August 2019, which it is denied that she had, the Complainant ought to have raised a grievance prior to taking the decision to resign. The first step for the Complainant in doing so would be to speak with her manager, which she failed to do.

The Employment Appeals Tribunal case of Sheehan v Sansont Ltd UD1118/2014 concluded (in respect of a grievance raised alleging bullying behaviour) that although the respondent’s grievance process was in the complainant’s estimation less than ideal, she nevertheless failed to fully exhaust it. The EAT held that she was not justified in resigning.

It is well established that there is a very high onus on an employee to prove that he/she had an entitlement to terminate their contract of employment. It is submitted that the Complainant in this case cannot demonstrate anywhere near the required standard to overcome this hurdle and show that she was entitled to resign her position and terminate her contract.

The Complainant had a number of options open to her which she had a duty as an employee to consider before leaving her job. It is evident from the correspondence between the parties that the Complainant did not exhaust the appropriate grievance procedure in the present case before resigning on the 23 August 2019. Instead she chose to abandon that procedure and voluntarily resign.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a)        re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b)   re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)         payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 herself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

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

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the complainant to terminate her contract of employment.

The complainant alleges that certain employees of the respondent, mainly Ms AK, treated her very badly following the voicing of her concerns in relation to hygiene matters. Ms. AK began to cut her hours. The complainant had consistently worked 30 hours per week prior Ms. AK’s appointment. In or around May/June, 2018 immediately following the appointment of Ms. AK, the complainant’s hours were reduced to 24 hours. In September, 2018 her hours were reduced to 18 hours and on the 15th July, 2019 her hours were again reduced to 16 hours. During the meeting on the 16th July she was threatened with a further reduction to 10 hours. The complainant’s contract of employment states:

“The Company’s normal hours of work are [24 hours] Monday to Sunday inclusive. The Company operated [up to 5] shifts per day. You will be required to work a minimum of [4] hours per week or [1] shift per week. Your hours will be determined weekly in advance and will be rostered in accordance with the company’s shift policy. Flexibility is required. The company reserves the right to change these working hours. You will receive as much notice as is reasonably possible prior to any such change.”

Due to the wording of the complainant’s contract, the reduction in her hours is not technically a breach of her contract. However, I find that the systematic reduction of the complainant’s hours, is on balance, directly related to the hygiene concerns she raised with Ms. AK. Ms. AK on the 16th July threatened to reduce her hours to 10 per week. That coupled with the ongoing issues the complainant had with Ms. Ak, the respondent’s reluctance to deal with her concerns and the altercation with Mr. NN I find it was reasonable in the circumstances for her to terminate her contract. I do not accept the respondent’s submission that the complainant did not raise a grievance. It is clear from the evidence that the complainant did raise the issue with Ms ED and Mr NN on more than one occasion, but nothing was done about it. The complainant’s contract of employment, which she was not given a copy of, states:

“If you have a grievance relating to your employment you should raise the matter with your Site Manager or other management as the circumstances warrant….”

Even in the absence of that information, the complainant took the correct course of action by addressing her Manager in relation to the issue. That grievance, I find, was not dealt with in any meaningful way. In fact, at the meeting that was held in the store room on the 16th July, the complainant was informed by Ms. AK that her hours were being cut due to her “shit performance”. When the meeting broke down and tempers flared, Mr NN did nothing to restore calm.

The complainant is seeking to be reinstated to her position prior to terminating her contract of employment. It is most unusual to seek reinstatement in circumstances were she states that “she was made to feel so very uncomfortable she began to dread going into work and regularly found herself to be tearful going in and upon leaving” Furthermore, I note that the complainant was certified unfit for work due to work related stress from the 16th July, 2019 to the 27th August, 2019. It is clear from the evidence of both parties that the essential element between employer and employee, trust and confidence, no longer exists between the parties and in those circumstances, it would be inappropriate to reinstate or re-engage the complainant. I find that compensation is the only appropriate remedy. In that regard, I note that the complainant secured employment in the second week of September, meaning that she has a loss of only two weeks. She has no ongoing loss.

The complaint succeeds. I award the complainant € 440.00

The complaint succeeds. I award the complainant €440.00