ADJ-00030755

Complainant

Respondent

Parties

Julie Conran

Ladrigans Limited  t/a Ladrigans Xl

Complainant

Respondent

Representatives

  Self-Represented

Ronan Kennedy , Solicitor of Kennedy Frewen O'Sullivan

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-00041067-001

16/11/2020

The issue in contention is the alleged Unfair Dismissal / (Constructive Dismissal) of a Shop Assistant by the Employer -a Retail/Convenience Shop.

The Employment commenced in September 1999 and ended on the 28th May 2020.

The rate of pay was €286 for a 26-hour week.

The Complainant gave extensive Oral evidence to support her allegations on her claim form. She had commenced work at the retail outlet in September 1999. All went very well – the Complainant carried out a very wide range of duties, many of a managerial nature, in an exemplary manner. She would often attend outside of her normal hours to help out with unexpected problems.

 In 2017 another employee, Ms.MC, who had formerly been the Office Administrator began to take a much more direct role in Shop Management. It was clear that Ms.MC had become the overall Manager, a role that Mr. P, the Director had formerly occupied. Her behaviour was overbearing, and she regularly belittled the Complainant. Offers of assistance from the Complainant to Ms.MC were declined -her offer to assist in the opening of a new premises was declined and Ms.MC effectively excluded the Complainant from all Shop management decisions. In August 2019 another staff member was offered the position as Shop Floor Manager. The Complainant was never even considered for the position. During 2018 and 2019 all the extra responsibilities that the Complainant had been carrying out were removed from her by Ms.MC. She, the Complainant, began to feel invisible, ignored and excluded.

In November 2019 the Complainant approached Mr. P, the Owner/Director of the shop and requested a meeting to discuss her issues and what was upsetting her. A meeting was arranged for the 24th November 2019 attended by Mr. P, Ms.MC and the Complainant. The meeting was most unsatisfactory and nothing was achieved. The Complainant’s self-esteem collapsed but she continued working even if under extreme stress.

On the 2nd April 2020 the Complainant was requested to “self-isolate” as a close Covid contact. Her Husband is a medically vulnerable person and the Complainant could not continue to work in a busy retail environment. She was off work for four weeks in April 2020. On her return on the 28th April Ms.MC had changed her working hours with much more weekend and late evening work. The work situation continued to worsen, and she was ignored by Mr. P and Ms.MC. Eventually on the 21st May 2020 she handed in her notice and worked until the 28th May 2020. Her final wage payments were made by cheque even though she had always been paid in cash.  The cheque took five days to clear and caused the Complainant financial hardship. This payment was done in this way by Ms.MC as a vindictive act as the shop had plenty of cash on hand to pay the Complainant.

The Respondent Shop /Employer has no Grievance or Bullying procedure and the Manager Ms.MC was allowed by Mr. P to bully and harass the Complainant for a number of years especially since 2017. The Complainant was in a difficult financial situation with a vulnerable husband and needed to keep her job. However, this could only last so long and by 21st May she was left with no option but to resign. Her case for Constructive dismissal is strong and based on the appalling bad behaviour of her former employer.

All the Oral evidence from the Complainant was the subject of full cross examination by the Respondent Legal representative.

The Respondent submitted a Written Statement and gave Oral evidence from Ms.MC, the overall General Shop Manager for the three Shops in the Group and from Mr. P, the Director / Owner of the Group.

The Complainant commenced employment, with a previous Shop Owner, in 1999 as stated. She had a Contract of Employment from the Respondent from 14th November 2013.

The Complainant was a very capable part time employee and there never had been any issues between her and the employer. In the long period of her service since 1999 the business environment and retail practices had changed and developed. Duties and responsibilities were often reallocated among staff as the business situation evolved.

Her position was part time and her on the book hours, 24 per week, were limited by the requirements of her husband’s Social Welfare payments.

In relation to her specific complaints regarding “Exclusion” the situation of the new Shop opened in 2017 was clearly not of relevance. Her offer of assistance had been noted but as she lived geographically far away from the new Shop she would never have worked there in any event.

It was accepted that Ms.MC had taken a much more active role in the running of the Shop since 2017 but this was simply good business practice by the Owner. The Complainant was never “excluded” but had to recognise that business management/shop operating decisions by Mr. P and Ms.MC that did not directly involve her personally did not need to be discussed and or agreed with her. In particularly this refereed to Shop Openings/Closings in other Towns such as Mooncoin or Killenaule.

In relation to daily shop duties such as cash balancing/preparations of daily cash the owner had felt that this had to be more tightly controlled and he had reduced the number of staff, including the Complainant, directly involved. Likewise, the ordering of cigarettes, newspapers, Lotto returns would change depending on the needs of the time. There was nothing of a personal nature, directed against the Complainant in some bad way, involved here. All other staff were equally impacted.

Ms.MC often had conversations with other staff in the Shop but these were business related and were not designed to, in some way, exclude or belittle the Complainant as alleged.

It was accepted that a meeting had taken place on the 24th November with the Complainant, Mr. P and Ms.MC. Considerable Oral evidence was given on this issue. Mr. P felt that the meeting had “cleared the air” between Ms.MC and the Complainant. Ms.MC had apologised for any inadvertent slights that the Complainant may have felt. The meeting had, in his view ended amicably and there were no follow up issues arising.

In relation to any suggestions that the Complainant was excluded from promotional opportunities such as the Shop Floor Manager vacancy suggested by the Complainant, it was the clear view of the Senior Managers, Ms MC and Mr. P, that the Complainant was excellent at her 24-hour part-time hours but would have displayed little aptitude to go beyond that.

The Complainant had been on Covid 19 leave in April. The Shop had offered to pay her wages via the Government Support payments scheme, but she had declined. The actual pay situation that had arisen was more due to her Husband’s Social Welfare situation. The Respondent was not prepared to pay “Cash” outside of Revenue rules and this had annoyed the Complainant.

The changes in Hours when she came back on the 28th were due to Covid and Social Distancing rules in the Shop. Hours were reduced across the board for all staff and not targeted against the Complainant.

In relation to the final cheque payment this done to facilitate the Complainant getting an early payment.

It was noted that the Complainant had commenced another employment immediately after leaving the Respondent. Any loss of earnings would be marginal if arising at all.

In overall summary the Legal representative for the Respondent summarised the position as one where the Complainant had simply resigned.  She was not happy with changes /business evolutions in the Shop. She had another job to go to almost immediately after leaving the Employer.

The letter of resignation of the 21st May 2020 had not contained any allegations or grievances.

None of the standard Legal Constructive Dismissal tests of Breach of Contract or Unreasonable Employer behaviours could be possibly satisfied by the Complainant.

3:1 Legal Position.

This is a case of Constructive Dismissal. This is defined in Definitions in the Unfair Dismissals Act,1977 Section 1 (b) as

“ 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, or

Legal precedent has identified three legal “tests” in a case of this nature.

These  are

1. Fundamental breach of the Employment Contract by either of the Parties so bad as to effectively force a resignation.

2. Completely unreasonable behaviours by either party that is so bad as to leave the employee with no “reasonable” option but to resign

3. The utilisation or not of all available internal Grievance procedures in advance of any Resignation.

All cases rests on their own facts & evidence and using the “Tests” above we must review the evidence presented.

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

The overwhelming bulk of the evidence given in this case was Oral. The Complainant, Ms. MC, the General Manager and Mr. P, the Owner Manager, all gave Oral evidence which was fully cross examined.

The evidence pointed to a situation where prior to 2017 the Complainant had been an almost de facto Shop Manager with a wide range of responsibilities. However, in 2017 the overall owner Mr. P had reviewed the business and expanded with the purchase of a new shop. Ms MC had impressed him in her previous role and she was effectively made a type of General Manager of all Group Shops – which now numbered three.

As part of this role Ms.MC became much more directly Managerially involved in the Complainant’s Shop. It was clear from the Oral evidence that this had led to issues with the Complainant. They were not direct confrontations but rather the scaling back of the Complainant’s range of work to her basic 24-hour part-time role. There was no evidence given that this was done in any malign manner against the Complainant but rather a tightening up of how the Shops were being run.

It was interesting the discussion of cash payments off the books. It appeared that his may have been allowed in the past but that Ms.MC was not prepared, following her increased role in 2017, to allow any future deviations from Revenue payroll rules. It was illustrative of what might be, in an exaggerated way, called a Management culture change. Likewise issues over the running of the Deli Counter, Newspapers, Lotto etc were not, as they probably had been in the past, discussed with / prior approval sought with the Complainant. There was nothing untoward in this or negative towards the Complainant. Her excellent service was recognised and valued but she was not the Store Manager.

The Oral evidence of the Complainant was detailed and emotional. However, it was hard to identify actual specifics to ground her allegations other than the fact that Ms.MC, the General Manager, was taking decisions regarding the Shop without consulting her in advance.

Ms. MC gave oral evidence that described her role and how she had largely taken over the day to day running of the Shop. There was no suggestion of any blame or fault with the Complainant.

In relation to the meeting of the 24thof November, Mr. P, gave clear and persuasive evidence. He had felt that any issue between Ms.MC and the Complainant had been resolved. The Complainant had been an employee at the Shop since 1999 and was a valuable member of staff. He was concerned that she appeared to be upset at the way the Shop was now being run. He felt that the situation was clarified to her satisfaction. He was very surprised that she had chosen to resign.

She had a part time 24 hour a week role which she carried out to his and Ms MC’s complete satisfaction. She could not do more normal PAYE hours with regard to her Husband’s SW benefits and any suggestion of other methods of payment for additional hours were not possible. The issue of the April payments was an example. Her payments had to go through Revenue and if there had been an inadvertent loss of money this was not the employer’s fault.

It was not the Complainant’s role to discuss with him the buying and selling of shops in other towns. These were issues at his Shop Ownership level. Likewise, the appointment and role of Ms.MC was an issue for his level.

The Contract of Employment from 2013 was exhibited in evidence with reference to the Grievance Section at Clause (xi). No formal Grievance had ever been lodged with the Employer.

3:3        Summary conclusions

In summary the Evidence led to the following conclusions.

1.       The Complainant had worked and, in her view, almost Managed the Shop for almost 18 years until 2017. She had become aggrieved over the Managerial role and style of Ms.MC since that date and felt left out and ignored since 2017.

2.Applying the first Constructive Dismissals Tests above there was no evidence to support the “fundamental” legal Breach of Employment Contract ground, so bad as to justify a resignation.

3.       The second Test that of Unreasonable Behaviours by the Employer was not supported by any substantial evidence. Ms. MC may not have felt the need to involve the Complainant in Managerial matters. The test required that the Employer act “egregiously” or in plain English in a very very bad manner indeed toward the employee. The evidence did not support this conclusion.

4.  As regards using Employment Procedures, the third test, it appeared that the meeting of the 24th November was seen by the Respondent as a “Clear the air” meeting and that the Complainant had aired her difficulties. No other written grievance was ever received from the Complainant. In terms of a Constructive Dismissal case the procedural situation was possibly a bit too informal, but it does not constitute a major factor in the overall case.

 3:4  Final Conclusion

The final Adjudication conclusion, having reviewed all the presented evidence and bearing in mind the Legal precedents, is that the case for a Constructive Dismissal has not been made.

No Constructive Unfair Dismissal took place.