Complainant

Respondent

Parties

Maria  Cushnahan

Pauka Park Limited

Representatives

John Cushnahan

Company Secretary

Act

Complaint Reference No.

Date of Receipt

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

CA-00034517-001

07/02/2020

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

CA-00034517-002

07/02/2020

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

CA-00034517-003

07/02/2020

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

CA-00034517-004

07/02/2020

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

CA-00034517-005

07/02/2020

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

CA-00034517-006

03/09/2021

The Complainant commenced her employment with the Respondent on 1st June 2007 as a General Sales Assistant. Her employment terminated on 9th August 2019. The parties confirmed that the Complainant’s average pay was €405 gross per week. She was paid €10.80 per hour gross and worked 37.5 hours per week.

The Complainant referred five complaints to the Director General of the WRC on 7th February 2020. An additional complaint in respect of annual leave and public holidays was raised in the Complainant’s correspondence to the WRC on 3rd September 2021.  

There has been voluminous correspondence received from the Complainant’s representative prior to the adjudication hearing. There was also some exchange of correspondence between the parties which was copied to the WRC. It is not necessary to address each piece of correspondence received and it will only be addressed when relevant for the purposes of this decision.

At the outset of the adjudication hearing, the parties were informed of the applicable time limits as stipulated in the legislation.

The parties were informed that Section 41 of the Workplace Relations Act provides as follows:

41. Presentation of complaints and referral of disputes

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The parties were informed, and reminded throughout the hearing, that the Adjudication Officer would not be making a decision on a preliminary matter of time limit at the hearing. The parties’ attention was merely drawn to the matter of the applicable time limits. The parties were invited to submit their views in that regard and the Complainant was informed of the provision in the legislation for the extension of the prescribed time limits. The Complainant did not wish to apply for the extension of the time limit.

The Complainant had not included a specific complaint in respect of the annual leave and public holidays in her WRC referral  form. However, her representative addressed the matter subsequently in the correspondence to the WRC. It appears that the matter was first raised in the email dated 3rd September 2021. The Complainant wished to introduce this new claim under the Payment of Wages Act.

In considering the introduction of a new claim I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. In that case McGovern J. held that

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this decision that this can only be done so long as "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated:- “It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.”

I also note the dicta of MacMenimin J. in the Supreme Court in Louth/Meath ETB v Equality Tribunal[2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Applying these dicta, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In the present case, this new claim which the Complainant sought to introduce at the hearing had been referred to in advance of the hearing in the Complaint’s representative’s email, which was copied to the Respondent. I am thus satisfied that the Respondent was on notice of the claim. In addition, and for the avoidance of doubt, I am also satisfied that the Respondent did not object to the introduction of the claim and addressed the matter in its submission at the adjudication hearing,

I am satisfied, given all of the circumstances of the present case, that I do have jurisdiction to permit the introduction of a new claim and to investigate this complaint.

The Complainant submits that she was employed by the Respondent on 1st June 2007 as a General Sales Assistant. She alleges that she was not notified in writing of a change to her terms of employment.

The Complainant claims that at some stage, a year or two years later (‘after Breda left’), she was given additional responsibilities such as opening the shop, being a key holder, getting the shop ready, etc. The Complainant argues that it was a change of her position and it added 30 minutes to her normal daily working hours for which she was not paid. The Complainant submits that for 10 of the years that she worked for the Respondent, she was given additional responsibilities which would normally be entrusted to a senior member of staff and she should have been paid additional renumeration for these.

The Complainant submits that before the store changed to a Centra franchise, after approximately seven years from the start of her employment, she was moved from working on the tills to working in the kitchen at the back of the shop preparing food. She claims that it was a fundamental change to her terms of employment.

The Complainant claims that after a further two years she was moved to the Deli. She submits that this role, again, exclusively involved preparing food and not working on the till. The Complainant claims that she made it clear to the then Store Manager that she did not want to work in the Deli and wanted to return to working in the tills but was informed that if she didn’t accept the new role there would be no guarantee that she would get her full 37.5 hours. As the Complainant’s partner (now husband) was unemployed at the time, and they had two children, the Complainant felt that she had no option but to accept the role. She claims that at the time she was not aware of the Act.

The only occasion she worked on the tills was when she was deputising for another colleague outside her normal working roster.

The Complainant argues that the additional 6.30am to 7.00am opening slot was separate from her normal 7am to 3pm roster. Her roster and contract should have been amended to record both a change in her role and extra hours she was required to work after Breda left.

The Complainant claims that she sent two letters (dated 7th June 2015 and 10th June 2015) to a manager inquiring about a change to her weekly hours and requesting a written statement of the change in her contract as required by the Act. Copies of the correspondence were exhibited.

In response to the Respondent’s question as to why she did not raise the matter with her employer, the Complainant said that she did not know her rights.

The Respondent submits that the Complainant was employed as a General Sales Assistant since 2007. The position of a General Sales Assistant covers roles across the different departments within the store, both in the Deli and on the shop floor/tills. As a small store with approximately 20 staff the Respondent needs the flexibility of having some staff trained and available to work across all departments. Since joining in 2007 the Complainant has worked both on the shop floor/tills and in the Deli. The Respondent refutes that she was required to be notified in writing when she moved from working on the shop floor and tills to the Deli and took on the role of opening up the store for a period of time. A number of staff perform tasks across all departments, including opening/closing of the store without any changes to their terms and conditions. This is a standard requirement in the grocery retail industry. Nothing different was applied to the Complainant.

At the adjudication hearing, the Respondent noted that there a number of Sales Assistants in the shop who deal with cash and keys, and rejected that the Complainant was treated any differently to them.

The Respondent asserted also that the Complainant’s contract of employment provides that her working week rotates as per the roster depending on the Complainant’s availability and seasonal factors and that starting and finishing times would be agreed with her Manager.

The Respondent noted that at no stage did the Complainant raise a formal grievance in respect of her complaint.

The Complainant submitted her claim to the Director General of the WRC on 7th February 2020 alleging that she was not notified in writing of a change to her terms of employment.

The Complainant was unable to provide the exact date when the alleged change took place. In the written submission and at the adjudication hearing a reference was made to “when Breda left”, “a year after I was initially employed”, “approximately two years”. At the adjudication hearing, the Complainant confirmed that she was referring to the change whereby she was asked to open the shop at 6.30am and that this occurred at some stage approximately two years after she joined the Respondent, i.e. in or around 2009.

 Section 41 of the Workplace Relations Act provides as follows:

41. Presentation of complaints and referral of disputes

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The within claim was referred to the Director General of the WRC some 11 years after the alleged change took place. 

For the sake of completeness, I will address the other matters raised by the Complainant. She claimed that some seven years from the start of her employment, she was moved from working on the tills to working in the kitchen at the back of the shop preparing food and that after further two years she was moved to the Deli. The Complainant started her employment in 2007. Therefore,  the most recent alleged change to her terms of employment, by her own submission would have occurred in or around 2016.

Having regard to the provisions of the Act, I find that the instant complaint was referred outside the limits provided for in Section 41 of the Workplace Relations Act.

The within complaint has not been referred to the Director General of the WRC within the time limits provided for in Section 41 of the Workplace Relations Act. Accordingly, I have no jurisdiction to inquire into the complaint.

The Complainant submits that she was unfairly dismissed from her position of a General Sales Assistant and that she was constructively dismissed from her position of a Deli Assistant. The Complainant, in the complaint referral form submitted that the reason for the dismissal or/and the reason that she left her employment was ”Failure of my employer to return me to the original terms of my contract as a General Sales Assistant working on the tills and the promises made to me by [the Store Manager]”.

The Complainant submits that she was employed as General Sales Assistant. After eight years she was taken off the tills and was transferred to the back of the shop preparing food for approximately two years, then she was transferred to the Deli working as Deli Assistant preparing food, which was on the shop floor. Both these jobs required the Complainant to undertake HACCP training on food safety, wear different and hygienic clothes (not a shop uniform), hair protection and protective gloves for safely handling food. Furthermore, unlike till operators the Complainant never dealt with money.

The Complainant argues that these tasks were not in keeping with her contract where it stated that she was being employed as a General Sales Assistant. The Complainant submits that she was unhappy with the situation. When she was transferred to the Deli, she made it clear to her then Manager that she was very unhappy with not being able to work on the tills and told her that she did not want to work in the Deli and wanted to be returned to the till. The Complainant submits that the Manager informed her that if she didn’t want to work in the Deli then she could not guarantee that the Complainant would get her full 37.5 hours of work. The Complainant submits that due to personal circumstances with great reluctance she worked in the Deli and started at 6.30am.

When the then Manager was succeeded by a new Store Manager, the Complainant claims that she made it clear to him that she was unhappy working in the Deli and that she wanted to start work later as she had done before. The new Store Manager promised the Complainant that she would be able to return to working on the tills as a Till Supervisor. However, when a vacancy did become available on the tills, he appointed his brother to it. His brother also worked the hours the Complainant had requested. The Complainant submits that the Manager kept promising her that she would be able to move but he never kept his promise. She says that due to her husband securing employment they had to employ a childminder as he started at 6am and the Complainant started at 6.30am. This halved her income. The Complainant says that because of this she had to take matters into her own hands. She informed the Store Manager that she was resigning as a Deli Assistant. She claims that was not resigning her post as a General Sales Assistant. She asserts that she expected that this would precipitate a discussion with the Owner of the shop and would lead to her return to working on the tills and starting later than 6.30am. No such discussion occurred. Instead, there was a series of correspondence with the Store Manager and the Owner. The Complainant draws attention to the following points contained therein:

1.       In his letter of 26th July 2019, the Store Manager notes the Complainant’s resignation from her position of Deli Assistant (but not as General Sales Assistant) but then proceed to dismiss the Complainant confirming that she will be paid two weeks’ pay in lieu of notice. The Complainant argues that before the Store Manager handed her the letter, which was at the end of her working day, he had discussed with her the possibility of doing several evening shifts as part of her returning to the tills.

2.       In his letter of 19th July 2019, the Owner of the shop categorically states that no promise was made to the Complainant about taking on another position in the shop (as a Till Supervisor,) then in the same paragraph he concedes that the Complainant did discuss the possibility of doing tasks other than the Deli in the past. The Complainant questioned why didn’t the Owner have a meeting with the Store Manager and the Complainant to discuss what the Store Manager had actually discussed and promised the Complainant? The Complainant exhibited printouts of texts exchanges with the Store Manager which, she submits, support the fact that she was offered the role. Furthermore, the Complainant argues that after she tendered her resignation as Deli Assistant, despite having gave him twelve years’ service, no one ever had a discussion with the Complainant as to what other options she might have other than working as a Deli Assistant. The Owner makes a reference to speaking to the Complainant on 17th July 2019. The Complainant argues that this was not a conversation but a 30 second comment as they passed one another on the shop floor while he was in the company of a salesperson from another company and the Store Manager.

The Complainant refutes the Owner’s comment that the Store Manager was unaware that she had expected to be moved to another position in the store. She argues that she discussed this many times with the Store Manager over the previous 12 months.

The Complainant argues that she resigned her position as Deli Assistant not as General Sales Assistant to bring matters to a head as she wanted to move from the Deli and the management were aware of that. She also wanted the Store Manager to deliver on his repeated promise to her of a Till Supervisor role. The Complainant argues that she made it clear to the Store Manager that she was not going to continue in her role. Furthermore, although she did not inform the Owner that she was resigning her position as Deli Assistant on 12th July 2019, she made him and the Secretary of the company aware many years before that she hated working exclusively in the Deli. She also told other managers of her unhappiness and the Respondent failed to fulfil its duty of care to her as a hardworking employee.

The Complainant argues that the Owner’s letters of 19th July 2019 and 22nd August 2019 coupled                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       with the text messages the Complainant presented are confirmation of the Complainant’s statement that there were ongoing discussions about her getting a new role as a Till Supervisor despite the denials by the Respondent.

The text messages were as follows:

The Complainant’s text to a work colleague “Just wondering if u remember what [the Store Manager] said to u bout what job I was getting when her told you about getting my job?”

The Complainant’s colleague’s reply: “he just asked if I would be interested in doing your hours that you were moving to the tills, like I was saying I wasn’t there that long so I wouldn’t have talked to him the way I do now and he actually asked [another colleague] to say it to me first before he mentioned it”.

The subsequent texts from the Complainant to the Store Manger were as follows:

26th July 2019: Just wondering were you talking to paul yet and let him know I wasn’t making thing up about the till job/And I left because of the deli? What did he say? If any thing”.

The Store Manager replied: “haven’t spoken to him. Wont see him until Monday now”.

The Complainant texted the Store Manager again on 2nd August 2019 “Did u get a chance to say it to him yet?”. The Store Manager did not respond to this text.

The Complainant submits that in her letter of 14th July 2019 she requested to discuss the matter with the Owner. Had he done so, it would have been another opportunity to clarify the Complainant’s expectations.

At the adjudication hearing, it was argued on behalf of the Complainant that in his letter the Owner acknowledged that the Complainant’s role was a Deli Assistant and not a General Sales Assistant.

The Complainant argued that she made the Store Manager aware that she was unhappy in her role and he made an offer of the Till Supervisor role. The Complainant referred also to a meeting some years previously with the Respondent at which, she claims, she was asked to provide information about the then Store Manager. She said that she raised the issue of her unhappiness in the Deli but the Respondent only wanted information about the Store Manager.

The Complainant argued that she did not invent the Till Supervisor role, it was the Store Manager who offered it to her.

When asked by the Adjudication Officer, the Complainant confirmed that the Respondent had an Employee Handbook with procedures and it was available in the canteen, she said she “flicked through it”, but could not remember if she was given a copy of same. The Complainant did remember that ‘there was something’ on the noticeboard that employees were supposed to sign to confirm the updated version of the Employee Handbook but she could not remember if she did sign it.

The Respondent submits that on 12th July 2019 the Complainant handed the Store Manager her letter of resignation. At no point during this exchange between the Complainant and the Store Manager did the Complainant have a conversation about the reason for her resignation, nor did she inform the Store Manager, or the Store Owner, that she was resigning as she no longer wanted to work in the Deli. On this basis her letter of resignation was valid and accepted. Given that the Complainant voluntarily resigned from her position the Respondent refutes the claim of unfair dismissal.

In relation to the claim of constructive dismissal, the Respondent submits that it sees no evidence or submission to support this claim. The Respondent argues that the Complainant resigned her job without any discussions with the Store Manager or the Owner as to why she was resigning. Following her resignation, on 17th July 2019, the Owner of the store spoke to the Complainant briefly and said he was sorry to see her go. The Complainant mentioned the cost of childcare as a reason for her resignation and then handed the Owner a letter and walked away. The letter, dated 14th July 2019, claimed that the Complainant has been promised a position of Till Supervisor which does not exist. The Owner wrote back to the Complainant on 19th July 2019 explaining that a promise was never made to her and in any case a position of Till Supervisor did not exist so could not be offered to her, or anyone else. A number of other letters passed between the Owner and the Complainant where the Owner continued to reiterate that no position of Till Supervisor existed and therefore could ever have been promised to the Complainant.

The Respondent refutes the claim that the Complainant had to leave her job due to the conduct of her employer. Instead, had she had a reasonable conversation prior to resigning with either the Store Manager or the Owner it would have been made clear to the Complainant that no position of Till Supervisor was available and the Respondent would have worked with her when a position was available to transfer her to the shop floor/tills if she wanted to pursue that option.

The Respondent submits that it is clear from the Complainant’s letters that she was not expecting a standard shop/till job – she was expecting a Till Supervisor role which does not exist.

The Respondent completely refutes this claim. There was never a discussion about a Till Supervisor role and no promise of such. The Respondent finds this claim to be totally spurious.

At the adjudication hearing, the Respondent argued that the Complainant relies on many conversations she allegedly had. The Respondent argued that there is no concept of a Deli Assistant and while it was acknowledged that there were a couple of staff whose contracts showed a ‘Deli Assistant’ position, contracts in general are issued as a ‘General Sales Assistant’ and work is carried across the shop. The Respondent contented that the argument in respect of the different positions of Deli Assistant and General Sales Assistant is semantics.

The Respondent argued that the Complainant handed her resignation to the Store Manager, she did not look to follow the grievance procedure and/or meet the Owner. The Respondent claimed that during a brief conversation with the Owner on 17th July 2019, the Complainant told him that she was leaving because of childcare. She did not ask to have a conversation or a meeting in the office. She handed him a letter outlining the matter of a Till Supervisor position. The Owner felt it was prudent to respond in writing and did so by letter dated 19th July 2019. On 2nd August 2019, the Complainant again wrote to the Owner saying that she resigned because she didn’t get a role that didn’t and doesn’t exist. The Respondent argued that it did not know that the Complainant was resigning to “bring things to a head”, or because she didn’t get the role of Tills Supervisor. The Complainant did not make the Respondent aware that she was resigning because of the promise. The Respondent acknowledged that some conversations took place about moving the Complainant to the tills but maintained that, as there was never a role of Till Supervisor, the Complainant was never offered one.  The Respondent argued that the Complainant made no formal complaint about her role in the Deli.

The Respondent submitted that all employees got a copy of the Handbook and, in 2018 when the Handbook was updated a document was given to every employee to make them aware that the updated Handbook was available in the canteen. While the Respondent acknowledged that the Complainant did not sign the document as requested to confirm the amendments, it was argued that the Handbook was available to the Complainant and referred to in her contract.

In respect of the text messages between the Complainant and the Store Manager, the Respondent noted that these were sent/received after the Complainant’s resignation and that reaching a conclusion from the texts that the Complainant was offered a Till Supervisor would be a ‘big step’.

The Law

The Act at Section 1 in relevant part 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)    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, “

The Complainant in the within case claims that she was unfairly dismissed from her role of a General Sales Assistant and that she was constructively dismissed from her role as a Deli Assistant. The Respondent rejects both claims and argues that the Complainant resigned her position.

The Complainant’s employment with the Respondent commenced on 1st June 2007. The contract of employment which the Complainant signed provides that she was employed as a General Sales Assistant. There was no dispute that at some stage, albeit no exact date was offered, the Complainant was transferred to the kitchen (some seven or eight years after the commencement of her employment) and subsequently (some two years later) to the Deli, and worked in these roles for a number of years.

On 12th July 2019, the Complainant wrote to the Respondent as follows:

“Please accept this letter as formal notification that I am resigning from my role as Deli assistant with Centra Annacotty. Thank you.”

An exchange of correspondence between the Complainant, the Store Manager and the Owner of the shop ensued. I will address it below.

On 14th July 2019 the Complainant wrote to the Owner. She pointed out that about a year previously she was promised the role of Till Supervisor. She went to say that she was due to return to work after her holidays on Monday 15th July 2019 and, “…as it was clear that I would still be expected to work as a “Deli assistant” I indicated to [the Store Manager] that I was not prepared to work in that role and gave notice to that effect. I believe that the promise that was made to me over a year ago should be honoured.”

On 19th July 2021, the Owner responded to the Complainant saying that he was “…sorry to see you leave and I thank you for all your years of service and wish you well for the future.”

The Owner went on to clarify that

·       There is no position of a Till Supervisor in the shop and never has been.

·       There was never any promise made to the Complainant about taking on another position, although the Complainant did discuss the possibility of performing tasks other than the Deli role in the past.

·       When the Complainant resigned, she did not inform the Store Manager that she was resigning because she expected to be moved to another position.

·       When the Owner spoke to the Complainant on 17th July 2019, she did not mention that she was resigning because she did not want to remain in the Deli. She mentioned the cost of childcare as being the main reason for her leaving.

The Owner noted that there was nothing to “honour” and that the Complainant could apply for any other position that becomes available in the future but the only position available at that stage was that of Deli Assistant as a result of the Complainant’s resignation.

In the letter dated 26th July 2019, the Store Manager confirmed the Complainant’s resignation from her position of Deli Assistant on 12th July 2019. He further informed the Complainant that she would be paid for the next two weeks in lieu of notice up to Friday 9th August 2019. The Store Manager thanked the Complainant for her years of service and wished her the best for the future.

The Complainant replied to this letter by a letter dated 2nd August 2019. The Complainant took an issue with the start of the Store Manager’s letter and the wording “further to our meeting…”. The Complainant pointed out that no meeting took place. She then asked if “Further to my phone texts of the 26th July and the 2nd August , I would like  to know if you have spoken to [the Owner] yet and let him know that you did actually promise me the position of “Till Supervisor” last year.”

On 2nd August 2019, the Complainant also wrote to the Owner. She clarified that the Store Manager offered her a role of a Till Supervisor, and she accepted. She clarified that she resigned as Deli Assistant because she was not appointed  to that role and noted that, after twelve years of service she would have expected that the Owner would have discussed the matter with her.

The Owner replied on 22nd August 2019 reiterating that there is not, nor has there ever been, a position of Till Supervisor and if the Complainant was under the impression that the Respondent planned on creating a Till Supervisor role this was simply not the case. He said that the Complainant resigned without requesting a formal discussion with him about her expectation. Had she done that, he would have made it clear that there was no such position available to her.

The Complainant responded on 29th August 2019. In this detailed letter, it appears that for the first time the Complainant states that she did not resign her position in Centra but that she resigned her role as Deli Assistant. She says that she “was still open to considering other work than that of Deli-Assistant” and that the Store Manager “effectively and unfairly dismissed me without you ever having had a discussion with me about my situation”. She said that she “had given notice on my resignation as deli assistant on 12th July but when I gave you the letter on the dated 14th July, I was still working in your employ in Centra, Annacoty. [The Store Manager], as I have said, dismissed me on the 26th July yet you never responded to my request for a discussion on my situation before he handed me the letter terminating my employment.”

It was not in dispute that the Complainant handed her notice to the Store Manager on 12th July 2019. She did not, at any stage until 29th August 2019, made the Respondent aware that her intention was to resign from her position of a Deli Assistant but remain in the role of a General Sales Assistant. At least on two occasions, on 19th and 26th July 2019, the Respondent thanked the Complainant for her service and wished her best for the future. In his letter of 19th July 2019, the Owner said “Firstly, let me state that I am sorry to see you leave and I thank you for all your years of service and wish you well for the future”.  On 26th July 2019, the Complainant was informed that there is no need for her to report to work after the 26th July 2019 and that she will be paid in lieu of notice. There doesn’t seem to be any ambiguity that the Respondent’s understanding of the situation was that the Complainant terminated her employment with four weeks’ notice, as required by the contract. If the Complainant believed that she resigned her position of a Deli Assistant but remained in employment as a General Sales Assistant it would be appropriate, in my view, to bring this to the Respondent’s attention at this juncture, at the latest. It is somewhat inconceivable that, should the Complainant believed that she was resigning her Deli position with an expectation of remaining in employment in the role of a General Sales Assistant, she did not at any stage until some 20 days post the termination day seek to clarify her understanding of the matter with the Respondent.

In relation to the Complainant’s assertion that the Respondent unfairly dismissed her by way of the letter dated 26th July 2019, I find that the said letter states inter alia “further to …your resignation from your position of Deli Assistant on July 12th I confirm that we will pay you for the next 2 weeks in lieu of notice. Therefore there is no need for you to report for work after your shift completes today Friday 26th.

In my view, there is nothing in the letter that suggests that the Complainant was being dismissed by the Respondent. It is clear from  the communication between the parties that the Complainant resigned her position and that her resignation was accepted. I have to agree with the Respondent that to argue the distinction between the General Sales Assistant Role and the Deli Assistant role is to argue over semantics. It would not be unreasonable for an employer in the retail grocery sector to assume that the role of a General Sales Assistant would encompass working in the Deli. In any event, it is my view that the Complainant had been moved to the Deli some years previously and worked at the Deli at the time of the resignation. Thus, by resigning her position of a Deli Assistant she resigned from her employment with the Respondent.

Having carefully considered the written and verbal submissions and evidence offered to me, I find that the Complainant was not dismissed by the Respondent but resigned her position.

In relation to the Complainant’s claim that she resigned her position due to the conduct of the Respondent, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713.The Labour Court in the case of Paris Bakery & Pastry Limited -v- MrzljakDWT1468, endorsed this legal test. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests.

The ‘contract test’ is set out 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 Supreme Court in Berber v Dunnes Stores Limited [2009] IESC 10, “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 to determine if it is such that the employee cannot be expected to put up with it.”

Therefore, this definition places the burden of proof on the employee to show that her resignation was justified in all the circumstances. The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The Complainant offered as the reason for her dismissal the failure by the Respondent to return her to the original terms of her contract as a General Sales Assistant working on the tills and the promises made to her by the Store Manager.

The Respondent refutes the claim of constructive dismissal and contends that the Complainant resigned of her own volition after failing to invoke the internal grievance procedures. The Respondent also refutes the Complainant’s contention that a promise was made to her to move her to a Till Supervisor position.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures in an attempt to resolve her grievance with the employer.

The Labour Court has held in the case of Emmanuel Ranchin v Allianz Worldwide Care S.A. UDD1636 that: “In constructive dismissal cases, the Court must 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 demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981.”

The Employment Appeals Tribunal has held in the case of John Travers v MBNA Ireland LtdUDD720/2006 that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

The Complainant clearly expected that she would be appointed to the Till Supervisor role and, when this did not materialise, she decided that, by her own submission she “had to take matters into her own hands” and she expected that her resignation “would precipitate a discussion with the proprietor”. While it appears that the Complainant had had some conversation with the Store Manager, I find that the Complainant did not formally raise her grievance.

There was no dispute that the Respondent had an Employee Handbook which contained a grievance policy that was in place at the relevant time. The Complainant confirmed that she was aware of the document, which was available in the staff canteen, albeit she could not confirm whether or not she was given a copy. She did, however, confirm that she “flicked through it”.

In accordance with the established principles in constructive dismissal cases, I find that there was an obligation on the Complainant to invoke these internal procedures to try and resolve her grievance before taking the step to resign from her employment. Based on the evidence adduced, I do not accept that the Complainant sought to invoke the internal procedures in relation to the alleged discontent with her position.  

I find that the Complainant has not established that the conduct of the Respondent was such that she had no option but to resign her position. I find that the Complainant did not give the Respondent an opportunity to address her concerns before taking the decision to resign. Accordingly, I find that the Complainant was not constructively dismissed.

CA-00034517-002 – I find that the Complainant was not unfairly dismissed by the Respondent. I declare this complaint to be not well founded.

CA-00034517-003 – I find that the Complainant resigned from her position on her own volition and was not constructively dismissed. I declare this complaint to be not well founded.

The Complainant referred her claim to the Director General of the WRC on 7th February 2020 alleging that the Respondent has not paid her or paid her less than the amount due to her. She claimed that the monetary value of the wages not received was €6,500.

The Complainant submits that the shop was open to the public from 7am. However, at some stage (approximately a year later) she was given responsibility for the keys and she opened the shop on her own at 6.30am to get it ready for operating at 7am.

The Complainant submits that approximately five years later a man on a motorbike approached her and threatened her and her children if she didn’t hand over the keys. The Complainant refused to hand  over the keys and he rode away. Despite experiencing such a traumatic event, the Complainant claims that she was never even given the next day off to get over it. Following this incident another male colleague opened the shop and the Complainant came in at 7am.

The Complainant submits that when her role changed to that of a Deli Assistant some two years later, she was again given the task of opening the shop at 6.30am but she was paid from 6.30am and finished half an hour earlier at 2.30pm.

The Complainant submitted that for five years she worked an extra two and half hours per week and as a result she is owed €6,500.

The Complainant also submitted that for ten years she was given the important and trusted responsibility of having the keys, opening the shop and getting it ready before the other General Sales Assistants arrived and she should have been paid additional remuneration for discharging it.

The Complainant conceded that she has never raised this issue with the Respondent. She placed trust in her employer to pay her all she was entitled to.

At the adjudication hearing, the Complainant’s representative acknowledged that the claim relates to the period from 2015 to 2018 and, given the time limits the Complainant decided to withdraw the claim.

The Respondent submits that it is the store policy to roster all hours from arrival to departure and pay employees for the hours they are rostered for. Rostered hours are not specifically linked to the store opening hours.

The Respondent submits that the Complainant’s claim relates to a period prior to 2014 and therefore timesheets records are not available. The Respondent contends that the Complainant has never raised this issue previously. The Respondent submits that this is another spurious claim made solely for the purposes of extracting money from the business.

The Respondent submits that at no stage it has ever rostered people for a time later than they were expected to arrive at work, this is not standard industry practice nor a practice that the Respondent follows or would have followed.

For example, the Respondent submits that on the day of writing of the submission there were approximately 6 people who could be rostered to arrive at the shop 30 minutes before opening, all are paid from that time. A number of these people are General Sales Assistants, and none get paid any extra for the task of ‘opening/closing’ the store.

The Respondent refutes this claim.

For a breach of the Payment of Wages Act to occur the wages referenced in the claim must be properly payable within the cognisable period set down in the Workplace Relations Act, 2015. As this claim was referred to the Director General of the WRC on 7th February 2020, the relevant period for consideration is 8th August 2019 to 7th February 2020. The Complainant employment terminated on 9th August 2019.

As the Complainant’s representative referred to the Adjudication Officer’s “ruling” in relation to the time limits, it was clarified to the parties that the Adjudication Officer does not make decisions in respect of neither the preliminary matter nor the substantive complaint at the adjudication hearing. While the parties’ attention was drawn to the time limits as stipulated in the legislation, the parties were invited to pursue any claim they wished to.

The Complainant’s representative confirmed that the within claim related to the period between 2015 and 2018 and there has been no underpayment in the period from 2019 onward. The complaint was withdrawn at the hearing.  

The claim was withdrawn at the hearing and, accordingly I do not make a decision in relation to this complaint.

The Complainant submits that she did not receive the appropriate payment in lieu of notice on termination of her employment.

The Complainant submits that she was employed as a General Sales Assistant, working in the tills but approximately eight years later she was pressurised to work as a Deli Assistant. The Complainant submits that she resigned her position as a Deli Assistant on 12th July 2019. She was not resigning her post as a General Sales Assistant. The Complainant submits that she received a letter dated 26th July 2019 from the Store Manager stating that she would receive two weeks’ pay in lieu of notice.

The Complainant argues that having worked for 12 years at the shop, she was entitled to six weeks’ pay in lieu of notice.

The Respondent submits that the Complainant resigned on Friday 12th July 2019. Under the terms of her contract 4 weeks of notice was required which would mean her exit date would fall on 9th August 2019.

The Complainant worked for two weeks of her notice period, per her rostered hours, up to 26th July 2019. At that point the Store Manager confirmed with her that she did not need to return to work for the remaining two weeks of her notice and she would be paid to the 9th August 2019 in lieu of her notice plus any holiday pay she was entitled to. All monies owed were duly paid and a P45 was issued.

The Respondent submits that the Complainant is claiming 6 weeks’ notice per her contract however, as it was she who resigned from her position, this clause per her contract does not apply. The six weeks refers to “upon termination of employment by the company”. The company did not terminate the Complainant’s employment – she resigned from the company. Therefore, the company was entitled to 4 weeks’ notice from the Complainant, which she partially worked and was partially paid in lieu for.

The Respondent, therefore, refutes the claim.

The Minimum Notice and Terms of Employment Act 1973 outlines in Section 4 the minimum notice an employer is required to give in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more. However, the Act does not require that an employer makes any payment in respect of notice when it is an employee who terminated his employment.

In light of my decisions in the specific complaints bearing the reference numbers CA-00034517-002 and CA-00034517-003,  I find that it was the Complainant resigned her position on 12th July 2019. Accordingly, as the Complainant resigned her position, there is no obligation on the Respondent to give notice and the issue of minimum notice on termination of employment by the Respondent does not arise.  For that reason, no breach of the Act occurred.

I declare this complaint to be not well founded.

The Complainant submits that, following the analysis of the payslips received from the Respondent serious questions arose as to whether or not the Complainant received all the monies due to her in respect of her holiday and public holidays entitlements.

In the correspondence to the WRC of 3rd  September 2021, the Complainant argued that she should have been entitled to 4 weeks holiday plus public holidays.  She claimed that this only happened in 2018 when she received 29 days. The Complainant claims that in 2015, she only received 22 days holiday entitlements. In 2016 she only received 23 days holiday entitlements. In 2017, she only received 19 days holiday entitlements.

In the correspondence to the WRC dated 17th September 2021, the Complainant again addressed the matter of annual leave entitlements for 2018 and claimed that she received 24 of 29 days she was entitled to. It was recognised in the correspondence that complaints under the Act must be lodged within 6 months in order to obtain compensation. However, the Complainant trusted her employer to honour her full statutory holiday entitlement.

In the correspondence dated 13th October 2021, the Complainant raised her concerns in respect of annual leave entitlements for 2019.

The Respondent refutes the claim.

The Respondent submits that the Complainant’s calculations are incorrect as the Complainant did not take into consideration that she was paid weekly in arrears. The Respondent submits that its annual leave year runs from January to December. The Respondent submits that in 2019 the Complainant worked 1039 hours in total and was entitled to 83.12 hours of annual leave. The Respondent submits that the Complainant was given her paid annual leave on the following dates: 7.5 hours on 11th March 2019, 7.5 hours on 3rd May 2019, 7.5 hours on 7th May 2019, 15 hours on 30th June 2019, 37.5 hours on 12th July 2019. 8.1 hours of outstanding annual leave were paid to the Complainant in her final pay.

The Complainant submitted her initial WRC referral form on 7th February 2020. This complaint form, however, did not include the Complainant’s claim in respect of annual leave and public holidays. The Complainant raised the matter of the alleged annual leave and public holidays underpayment under the Payment of Wages Act in the email from her representative to the WRC on 3rd September 2021. Given my findings in relation to the preliminary matter of the introduction of the new claim, the Complainant is not precluded from introducing this complaint. However, this complaint is ,of course, subject to the time limits prescribed by the relevant legislation.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Payment of Wages Act for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 3rd September 2021 and therefore the cognisable period that may be investigated is 4th March 2021. The Complainant’s employment with the Respondent ceased on 9th August 2019. Accordingly, no breach of the Act occurred in the cognisable period.

I declare this complaint to be not well founded.

Unfair dismissal-constructive dismissal- minimum notice- payment of wages- annual leave- time limits