Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

Noel O'Hanrahan O'Hanrahan Lally Solicitors

 none

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-00023894-001

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023894-002

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023894-003

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023894-004

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023894-005

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023894-006

07/12/2018

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

CA-00023894-007

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023894-008

07/12/2018

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

CA-00023895-001

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023895-002

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023895-003

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023895-004

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023895-005

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023895-006

07/12/2018

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

CA-00023895-007

07/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023895-008

07/12/2018

CA-00023894-002, 004,005,006,007,008, and CA-00023895 001,002,003,004,005,006,007,008.

CA 23894-001

The complainant commenced working for the respondent on 25.11.2013. Her contract is dated 25.04.2014. She was never given a copy of it. Her contract guaranteed her 18 hours work per week.

The complainant wasn't given any training in relation to how to use the cleaning equipment. She was given a mop and a bucket and nothing else that she could use to carry out her duties. She understood that there should be four mops coloured, yellow, green, blue and red. The colour of the mop dictated what it should be used for. She was never given the four mops and the ones she did have where usually broken. Sometimes the complainant and her colleagues had to sellotape the mops back together in order to use them. On occasion, when the mops and/or machine were broken, the floors of the stores had to be washed by hand.

The complainant only ever saw the manager once in a three-year period. On that occasion she begged him to do something about the substandard equipment, but her request was ignored.

The complainant and her colleagues were supposed to have a special machine to wash the shop floor, however, this machine was, more often than, not broken. When it malfunctioned and in order to fix it, it required someone to put their entire arm deep into the machine. The complainant felt that was extremely dangerous as they did not know exactly what they were doing. On the occasions when the machine was broken for a number of weeks, she was required to wash the entire store floor by hand.

The complainant also had issues with the large bins that were situated outside the store. Some of the bins where 140L and others 240L. The complainant really struggled lifting the heavier bins due to her size and height. The complainant sustained an injury in relation to the lifting of the bins in January 2017 and again in September 2018. She complained to her manager and supervisor on numerous occasions in relation to the difficulties she was experiencing lifting the heavy bins. They responded by telling her it was part of her duties and she should just “get on with it”. She was not informed that she could raise a formal grievance. She was not given a copy of her contract, so she did not know how to go about that.

There was an incident in the store around Christmas 2018. Milk had been spilt on the floor. The complainant was on her break but that was interrupted when she was requested to go and deal with the spillage. She immediately put up the yellow warning signs before she commenced cleaning up the fluid. When she had completed the task, she went back to finish her break. She was no sooner back in the break room when she was called out again to deal with another spillage. She again put up the yellow warning signs and cleaned up that mess. Once again, she returned to the break room to eat her lunch. That was now cold. Her manager then came into the room and started to shout at her, telling her that the supermarket’s manager was angry because the floor had been left wet and someone fell. The complainant explained that she had dried the floor completely before she left. She was left in no doubt that she was being blamed for the issue, despite the fact, that she did not have the correct materials on the day to carry out the job properly. Her supervisor informed her that it was her fault that she was guilty and would have to go back and do the job properly. Later she received a verbal warning. Following that, the complainant asked her supervisor if she could have some training on cleaning up spillages. She was showing a video of how to do the job correctly. In the video they were instructed to dry up any excess fluid on the floor with tissue or paper towel. She didn't have any and she asked her supervisor what she should do he told her to take it out of the drawers in the shop if she needed it. When she went to the drawer to get the paper towel she couldn't open it. When she eventually got it open there was no paper towel in it.

By August 2018 the complainant stated that she was physically and mentally unable to continue in the role. She felt that she was not treated like a human being and that the respondent had no respect for her. On that basis she felt there was no reason why she should stay on in her position with the respondent. Her manager and supervisor were always criticising her and she constantly felt hurt and discriminated against. Her supervisor was always late and on occasion didn't show up at all. Her supervisor was never there to deal with issues. On one occasion he refused to give her a day after so that she could attend with her doctor and when she challenged him on it he said, “I don't care about humans I only care about my god”. Following that she resigned from her position.

The complainant has applied for a number of positions. She really wants to work, and she loves to work. She did secure a position in an hotel near the airport. It was a housekeeping job but unfortunately due to the injury she had sustained in her back, she was unable to make the beds. The complainant has been on job seekers allowance since that date.

Holidays /Bank holiday.

The complainant never received the payment for working her bank holidays 2016 and 2017.

Hours Worked.

The complainant’s contract of employment guaranteed that that she will work 18 hours per week. She was asked to work 33 hours per week. Whilst the complainant had no difficulty with that, she wasn't getting a day off. There were days when she had to do a 13 hour shift however the complainant doesn't remember when that was.

The complainant commenced her employment with the respondent in November, 2013. At the material time, the complainant was working in one of the stores of a large supermarket chain.

The complainant was given training in relation to all aspects of her job. She received training in 2013 and again in 2015. The training involved watching videos. This training did encompass the topic of drying up spillages. She signed the training sheets for both 2013 and 2015. The staff are also trained how to maintain the machinery i.e. empty them, remove blockages, check batteries. If the machine breaks down a maintenance team are deployed to carry out a service on the machine and this is usually done within 48 hrs of notice of the issue.

All staff are supplied with the cleaning equipment required to carry out their functions effectively. Fresh mops are ordered every five weeks. The equipment, save for the paper towels, is supplied by the respondent. The paper tower is supplied by the store and is placed in drawers around the store. When the paper towel runs low, supervisors order more and place them in the drawers. When equipment breaks, it is replaced, once the respondent is put on notice. The respondent does not accept the complainant’s evidence that she was required to put her entire arm into the machine at times because there is nowhere in the machine where one could insert their arm.

The respondent accepts that there was a spillage incident in or around Christmas 2017. The complainant was given a verbal warning in relation to the incident. The warning was issued not because of the spillage but because the complainant should have stayed at the subject area until the floor was dry. She failed to do so and as a result a customer fell. The complainant did not appeal this warning.

The respondent does not accept that the complainant did not know how to lodge a formal grievance. In March 2017 she did lodge a formal written grievance. If she knew how to do it in March, 2017 then she should have been aware of the process in 2018. The complainant failed to file a formal grievance in relation to the bins and in relation to the cleaning equipment.

The respondent accepts a discrepancy in relation to the complainant days in lieu. In that regard the respondent states:

“We have gone through the day in lieu payments for 2017 made to [the complainant]and have discovered a discrepancy, it appears that she did not actually take some of her day in lieu.

DILs 16 hours in total. Normally the DILs are arranged between the staff on site and taken accordingly however for whatever reason this did not happen in 2017. [The complainant] highlighted this issue to the office by e mail on the 31/1/2018 (attached) but unfortunately for some reason it was not actioned, and the payment of 16 hours was missed.”

The complainant’s payslip demonstrates that she has been paid correctly for her Bank Holidays and Holidays.

CA 23894-01

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/her contract of employment with his/her 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 adjudication officer or the Labour 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) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) 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 himself 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”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“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 formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”.

The complainant alleges that her grievances in relation to her conditions of work were not addressed and that she was not provided with the essential equipment required to carry out her duties. She accepts that she did not raise formal written grievances in relation to those issues. That, she says, was due to the fact, that she was unaware that she had to lodge her complaint in writing because the respondent failed to provide her with a copy of her contract of employment. I accept that she did complain verbally to her supervisor on a number of occasions. The difficulty I have with the complainant’s reason for not filing a formal grievance in writing is that she did raise a formal written grievance, in line with company procedure, in 2017. I note she did get her son’s assistance in this regard. At that juncture she seemed to be fully au fait with the respondent’s grievance process. Therefore, I can only conclude that the reason given for not invoking the formal grievance process in 2018, simply isn’t credible. It was open to her to ask her son for his assistance with her further grievances, but she did not do so. It is on that basis that I find that the complainant failed to satisfy her obligation to exhaust the internal process prior to filing her claim with the WRC. Furthermore, she did not adduce any evidence which could lead me to conclude that invoking the grievance procedure would be a futile exercise.

The complaint fails.

CA 23944 – 003

The respondent concedes that it made an error in relation to the complainant’s days in lieu and accepts that the complainant is entitled to 16 hours pay.

In relation to the complainant’s Holiday pay and Bank Holidays, the complainant payslip demonstrates that she was paid for holidays and bank holidays. The complainant failed to procedure documentary evidence to demonstrate that the information contained on her payslip was in error or calculated incorrectly. On that basis that part of her complaint fails.

CA 23894 – 001 The complaint fails

CA 23894- 003 The complainant is entitled to 16 hours pay.