Complainant

Respondent

Anonymised Parties

A supervisory pharmacist

A pharmacy

Representatives

Grahame Pickett

Brendan McCarthy

Act

Complaint Reference No.

Date of Receipt

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

CA-00034478-001

05/02/2020

The complainant worked for the respondent from the 6th February 2017 to the 31st October 2019. She was paid €5,977 per month. The complainant resigned her employment and asserts that she was constructively dismissed. The respondent denies the claim.

The complainant outlined that her role as a supervisory pharmacist commenced on the 6th February 2017. She outlined that she was not able to exhaust the internal grievance procedure. The respondent had no regard to fair procedures in its dealings with her. The complainant had been out of work on work-related stress in February and March 2019. Between June and September, she was on paid suspension. The complainant asserted that the respondent had broken the contractual term of mutual trust and confidence. She resigned on the 13th September 2019 and outlined that she had no alternative but to resign. The complainant was not in receipt of pay from the 20th September to the 31st October 2019, the date her employment ended.

The complainant outlined that she was subjected to a prejudiced and unfair process, where she was denied representation of her choice. She was scapegoated for under resourcing and other inadequacies in the pharmacy where she worked.

The complainant outlined that she was not allowed to comment on adverse statements gathered by investigators during the first investigation. The respondent started a disciplinary process, and the complainant challenged the fairness of the process. The investigation team did not alter their findings. The complainant then submitted a grievance about the handling of the disciplinary process, but the respondent refused to process the grievance. The HR Manager suggested that the complainant transfer to another pharmacy with no findings made against her.

The respondent then put a second set of allegations to the complainant. The terms of reference asked the investigation to ‘confirm’ the allegations. The respondent refused to amend the terms of reference. The respondent then refused to meet the complainant’s chosen representative, despite already having met him on previous occasions.

The respondent now proposed that an external investigator deal with both sets of allegations as well as the complainant’s grievance. This was prejudicial and improper. Under the grievance policy, the complainant was entitled to have her grievance addressed prior to any further investigation. She had sought an accommodation on how both might be processed, but the respondent was not willing to agree.

The complainant submitted that the respondent then ran a campaign of delay and attrition, resulting in her suspension for 22 weeks. There followed correspondence between the parties, but the respondent refused to meet the complainant’s representative. The complainant resigned on the 13th September and agreed to reconsider this at the respondent’s request. The respondent, however, refused to amend the terms of reference.

The complainant stated that it was clear that the second investigation would follow the same pattern of reaching a pre-determined outcome.

The complainant then faced a period of unpaid suspension and further delays. She had been forced into a position by the respondent’s unreasonable actions and the respondent would not change. She, therefore, had no alternative but to resign.

In respect of the first investigation, the complainant said that the respondent asked the investigators whether it was warranted to reopen the investigation following her concerns. She outlined that this was a decision for the respondent to make itself. The investigator did not meet the complainant to discuss her concerns. On the 29th March 2019, the complainant’s representative wrote to the respondent to ask for a formal decision on the request made in respect of re-opening the first investigation. The last meeting was held in April 2019.

On the 15th May 2019, the complainant was informed that the respondent was appointing an external investigator to investigate two sets of allegations. The complainant then lodged her formal grievance. The complainant was informed of her suspension a week later. Following the appointment of the second investigator, the complainant was then suspended with pay between the 6th June and the 20th September 2019. The complainant’s suspension was unpaid after the 20th September 2019.

The complainant said that the respondent had done a U-turn after ending the first investigation but in the knowledge that it would raise additional allegations. She submitted that a reasonable employer would have wiped the slate clean of the first investigation and started again, in particular after the five-month delay. It was oppressive to subject the complainant to a third process, i.e. a new investigation following the previous investigation and disciplinary process.

The complainant outlined that the letter of the 22nd May 2019 prejudged the allegation of gross misconduct, for example by its inclusion in the terms of reference. In correspondence between the 23rd of May and the 1st September, the complainant asked that the nature of allegations be made more precise and made available to her in advance, as well as that she be able to access preparatory materials, documents and records. The terms of reference also had to be agreed by the parties. The new investigator had to be external and independent and could not re-investigate the historical issues or the grievance. By letter of the 18th June, the complainant asked that she be able to return to work.

The respondent’s letter of the 3rd July refers to the investigation meeting as not constituting disciplinary action and did not imply any assumption of misconduct. The letter of the 12th August states that the respondent intended to conclude the disciplinary procedure without delay. While a second letter of this same date suggested the complainant could respond to the allegations, it did not set out how she could raise her grievances.

By letter of the 13th September, the respondent informed the complainant that her pay would cease as she would not accept management instructions. On the 23rd September, the respondent wrote that the complainant’s failure to attend would result in a ‘mutually exclusive disciplinary process under gross misconduct’.

The complainant outlined that she set out her grievances in the letters to the respondent. The grievances relate to how the disciplinary process was undertaken. A grievance was also submitted in respect of the delay in carrying out the process. There was no process in respect of examining the grievance and no grievance meeting took place.

The complainant outlined that her grievance related to the conduct of the first flawed investigation as well as the decision to include the first set of allegations in the second investigation. She outlined that the respondent did not fairly examine her grievance. While the respondent suggested that the complainant raise this grievance with the external investigator, she noted that this was not included in the terms of reference. The complainant outlined that there must be an independent grievance process to consider the conduct of the first investigation. She outlined that the respondent contradicted itself by saying that the complainant could raise her grievances as part of the investigation, while also responding to the grievance (letter of the 30th May 2019). She submitted that the respondent did not adhere to SI 146/2000.

In the letter of the 5th September, the complainant indicated that the respondent had undermined her trust and confidence and behaved so unreasonably to sunder her employment rights, resulting in her constructive dismissal. Subsequently, the complainant resigned on the 13th September.

The complainant outlined that her grievances should have been independently investigated by an agreed third party. They should have been given priority and resolved before any other investigation took place. The respondent, however, did not process the first grievance and assumed that its U-turn addressed the matter.

The complainant submitted that the respondent ought to have withdrawn the first set of allegations; resolved the first grievance in advance of any further process and agree in advance the terms of reference and composition of any investigation team.

The complainant outlined that the respondent refused to meet or to correspond with her representative. This denied her right to representation. She outlined that she was suspended for 22 weeks. This left the complainant with no option but to resign. The letter of resignation outlines that while the respondent had offered to stall the process, the process itself was flawed. The complainant said that the grievance should have been separated and independently investigated and resolved prior to any further disciplinary investigation.

The complainant referred to the Labour Court authority of Paris Bakery & Pastry Ltd v Mrzljak DWT 1468, which concluded that the employer had undermined ‘the duty of mutual trust and confidence which lies at the root of every contract of employment. It was also conduct that was so unreasonable that no employee could be expected to tolerate it any further.’

The complainant outlined that she commenced her new role on the 14th October 2019 but was now on a lesser rate of pay and on an hourly rate. She worked 36 hours per week. Her earnings had reduced by €126 per week. She also had a longer commute as the pharmacy was further from her home.

The complainant submitted that the respondent should have acknowledged that the first investigation was flawed but did a U-turn by proceeding with the second investigation.

The respondent outlined that the complainant had not shown that she had no option but to resign or shown that she had exhausted all internal procedures. The respondent had asked the complainant to reconsider her resignation. It sought to agree terms of reference for the investigation. It submitted that the complainant and her representative tried to tell the respondent how to run the investigation. It had only refused to meet the complainant’s representative regarding his wish to determine the course of the investigation.

The respondent outlined that all the issues it raised were serious. The disciplinary process was ongoing and never reached a conclusion. It outlined that the complainant’s grievances related to the disciplinary process and were an attempt to delay the process. The respondent responded to the complainant’s grievances and she did not refer the grievances to ‘stage 2’ of the grievance process.

The respondent outlined that more issues came to light following the first investigation, leading to the decision to suspend the complainant. The respondent agreed to engage a second investigator in order to review the first investigation.

The respondent identified several flaws with the complainant’s work during the first investigation. They related to accounting and prescribing drugs. The dispensing issue related to the type of drug and dosage. The reason for the suspension related to the errors. 

The respondent outlined that it had answered the complainant’s grievances in writing. In respect of the reference in the letter of 23rd May to ‘mutually exclusive disciplinary processes’, the respondent said that this was not relevant in a constructive dismissal claim.

This is a complaint of constructive dismissal. The complainant tendered her resignation on the 13th September 2019 and her employment subsequently ended on the 31st October 2019. Between June and September, the complainant was suspended from work with pay and was on unpaid suspension from the 20th September to the end of her employment.

The complainant resigned on the basis that the respondent broke the term of mutual trust and confidence in how it proposed to investigate and potentially discipline her for performance issues. The respondent cited that it wished to address issues related to accounting and dispensing medication. The complainant lodged a grievance, which the respondent did not address on a standalone basis. The complainant resigned in advance of the completion of the second investigation.

Statutory definition

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract without giving notice or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider when they have been dismissed if they can no longer be expected to put up with the ‘conduct’ in question.

It is clear from the statutory definition that there are two circumstances in which an employee can consider themselves to have been dismissed. It is also clear that an employee can fall within subsection (b) even if they themselves give notice to terminate their contract of employment (as the subsection explicitly refers to whether ‘prior notice of the termination was or was not given to the employer.’)

Trust and confidence

The complainant cited the Labour Court authority of Paris Bakery & Pastry Ltd v Mrzljak. This was a penalisation case taken pursuant to the Organisation of Working Time Act, where the employee was head-butted by their employer after asking to take a daily rest break. Not surprisingly, the Labour Court held that the ‘serious and unprovoked assault’ undermined the employee’s trust and confidence in the employment relationship and the employee was, therefore, entitled to consider himself dismissed. The claim of penalisation, therefore, succeeded.

The complainant has asserted that the respondent’s actions undermined her trust and confidence in the employment relationship. She submitted a grievance, which the respondent did not hear and later proposed to address along with the external disciplinary investigation process. The complainant also challenged the inclusion of the issues considered as part of the first investigation. Also relevant to this claim is the decision to no longer pay the complainant while she was suspended.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms of whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in

order to determine if it is such that the employee cannot be expected to put up with it.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

Application to the instant case

In assessing the instant case, I note that this matter stems from performance concerns raised by the respondent regarding dispensing medication and accounting for sales. Initially, the complainant took workplace stress-related sick leave and was then suspended for many weeks. On the 13th September 2019, the respondent wrote to the complainant to say that it would cease paying her and this cessation occurred on the 20th September. The complainant resigned on the 13th September 2019.

Taking all the complainant’s criticisms of how the respondent handled the disciplinary matters and the grievance at their height, I find that this was not sufficient to ground a claim of constructive dismissal. Whatever the failures in the process adopted by the respondent, they were not so egregious as to go to the root of the contract of employment. It may well be the case that the respondent would not have been able to stand over a dismissal arising from a finding of misconduct arising from, for example, the first investigation, but this does not necessarily mean that the complainant was entitled to consider themselves to be dismissed.

I find, however, that the complaint of unfair dismissal succeeds. This arises from the decision of the respondent to put the complainant on unpaid suspension. Suspension is part of the armoury an employer has at its disposal when looking into serious concerns regarding conduct or performance. Here, the employee was suspended for some 22 weeks during which time there was start and stop in the investigation of the issues. The respondent was dissatisfied with the complainant’s willingness to cooperate with the disciplinary process, saying that she was seeking to impede the process.

Even taking the respondent’s criticisms of the complainant and her representative at their height, the decision to suspend the complainant without pay amounts to a sanction imposed without process. It is open for an employer to initiate a disciplinary process in respect of how an employee did or did not cooperate with an existing disciplinary process, but the new process should be completed in line with the disciplinary policy. Here, no new disciplinary process was initiated, and the respondent announced the decision to cease paying the complainant.

Doing work and remuneration are the central elements of the work/wage bargain at heart of the employment relationship. Here, the respondent said that the complainant would no longer be paid, and this was put into effect on the 20th September 2019. She resigned on the same day she was told of the unpaid suspension (13th September 2019). Whatever of the initial decision to place the complainant on suspension and the length of the suspension, there was no basis to now suspend her without pay (as could potentially have occurred, for example, as sanction following a completed disciplinary process). I, therefore, find that the decision to place the complainant on unpaid suspension repudiated the contract of employment as remuneration is central to the work/wage bargain. Whatever of the issues to be addressed in the fused disciplinary/grievance process and the reasons for their delay, the complainant was, in effect, left with no choice but to find alternative employment because she was now to be placed on unpaid suspension.

In assessing loss, I note that the complainant commenced new employment on the 14th October 2019. Her employment with the respondent officially terminated on the 31st October 2019. As of the date of dismissal (31st October 2019), the complainant was already in alternative employment. She asserts that she receives €126 less per week in this new employment. It is likely that the complainant’s hours will increase over time or she will return to a similar level of earnings as she held with the respondent. Taking the reduced weekly income and the complainant’s good prospects, I award redress of €4,000.

CA-00034478-001

I decide that the complainant was unfairly dismissed in contravention of the Unfair Dismissals Act and the respondent shall pay to the complainant redress of €4,000.

Unfair Dismissals Act / constructive dismissal / Berber v Dunnes Stores / repudiation of contract