ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006059
Parties:
| Complainant | Respondent |
Parties | Georgina Violett | Aldi Stores (Ireland) Limited |
Representatives | Gerald Meagher Midland Legal Solicitors | Kiwana Ennis, BL instructed by Vincent & Beatty |
Complaints:
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-00008319-001 | 22/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00008319-002 | 22/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00008319-004 | 22/11/2016 |
Date of Adjudication Hearing: 11/09/2019 and 13/04/2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 8 of the UnfairDismissals Acts, 1977 - 2015, Section 7 of the Terms of Employment (Information) Act 1994 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed by the Respondent from 10th June 2013 to 28th May 2016. She resigned her employment stating at the time that, as it was not possible to satisfactorily resolve her difficulties with the employer, she had no option but to resign. The Complainant also contends that she was discriminated against on grounds of race and gender and that she was harassed and sexually harassed during the period of her employment. Further, the Complainant contends that the Respondent breached the Terms of Employment (Information) Act 1994 in not notifying her in writing of a change in conditions of employment, when she was required to report for duty fifteen minutes before shift start times. |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent Company on 10th June 2013. She continued in employment up to 28th May 2016. Her last day of work in the Store was 14th May 2016 (per her representative’s submission) when, it is submitted, she was obliged to hand in her notice. Her employment ceased with the Respondent on 28th May 2016. In or about 22nd March 2016, the Complainant submitted a formal letter of grievance against the Manager of the Store. This was sent to the Head Office, who sent it to the Area Manager. The Complainant was contacted by the Area Manager. She was informed verbally by the Manager that the matters were being investigated and that she would be notified once the investigation was completed and that they would have a further meeting. The Complainant contends that as she was never informed of the outcome of the investigation she understood that it was ongoing and continuing. Shortly after she left the Company she became aware that the investigation into the behaviour of the Store Manager had been broadened as a result of a number of similar complaints made by other employees at the store against the same manager. This enlarged investigation led to the suspension of the Store Manager while the investigation was ongoing. It was the Complainant’s understanding the investigation into her complaints would take time and she assumed that once the Respondent had completed the investigation they would put forward redress proposals in the context of the complaint. During the months that followed, the Respondent undertook a comprehensive and wide ranging investigation into the Store Manager. The Complainant was not informed of the outcome of the investigation on foot of her complaint. Due to the failure by the employer to complete its investigation and to communicate the findings of the investigation to the Complainant, it became apparent with the passage of time that the grievance procedure being adopted by the Respondent employer was unreasonable and unfair and the Complainant was left with no alternative but to file her complaint with the Workplace Relations Commission. Time Limits It is submitted that where the Complainant was endeavouring to use the Respondent’s internal grievance procedures to resolve the matters, time cannot be deemed to run against her until such time as she is informed as to the outcome of the investigation, the basis for the findings and the proposals arising therefrom and if she was dissatisfied with that outcome she ought to be advised of her right to an internal appeal. The Complainant learnt in 2017 that the Respondent did eventually complete its investigation and upheld the complaints made against the Store Manager and ultimately led to his dismissal. The outcome of the investigation has never been communicated to the Complainant, despite being requested but no response was forthcoming. It is submitted that the statutory time period of six months for the making of the complaint ought to be deemed to be stayed pending the outcome of the internal investigation. It can be noted that the Complainant’s contract and the Employee Handbook are silent on the implications and effectiveness of the filing of her internal complaint. This leads to a lack of clarity on the Respondent’s part. The Complainant was entitled to believe that the need to file a complaint to the WRC within a six-month period was stayed pending the outcome of her appeal. It is argued that the Respondent cannot on one hand require an employee to follow the Company’s Grievance Procedure and on the other hand delay the grievance process to such an extent so as to push the employee outside the statutory time period for making a complaint. It is submitted that the instant case is similar to the case of UPC Communications Ireland -v- Employment Appeals Tribunal (Respondent) and Ann Marie Ryan (Notice Party), 2017 IEHC 567. It is submitted that in circumstances where the Respondent had assured the Complainant that her complaint was being investigated as part of the internal grievance procedure she was entitled to assume in the absence of being told to the contrary by the Respondent that the running of time was stayed pending she being informed of the outcome of the investigation and any appeal which may arise therefrom in accordance with the Respondent’s grievance procedure. It is submitted that the only difference between the above case and that of the Complainant is that in the above case the internal dispute related to the disciplinary procedure whereas the internal dispute in this instant case arises from the Respondent’s grievance procedure. It is submitted that it would not be appropriate to apply different criteria, standards or tests between each type of dispute. It is submitted that the considerations and tests ought to apply to the Complainant’s case under Section 77 of the Employment Equality Act as to the commencement of the six-month time period for the filing of a complaint to the WRC. This is in circumstances where the Respondent had assured the Complainant that her complaint was being investigated as part of the internal grievance procedure and as such she was entitled to assume in the absence of being told to the contrary by the Respondent that the running of time was stayed pending she being informed of the outcome of the investigation and any appeal which may arise. It is submitted that the Complainant’s complaint under the Employment Equality Act ought to be deemed to have been made within the six month time period permitted under the Employment Equality Act and that the running of the six month time period was, due to the actions of the Respondent, stayed pending the Respondent completion of the internal dispute resolution process as set out in the Respondents grievance procedure. In the event that discretion needs to be exercised to extend the time limit under Section 77 of the Employment Equality Act, it is argued that - The reason relied upon for the delay in filing the complaint was on the basis that the Complainant was awaiting a decision on the investigation into her grievance - The Respondent delayed the investigation unduly and the Complainant had no alternative but to make the complaint to the WRC. It is submitted that the Complainant still has not yet been informed as to the outcome of her complaint. - The Complainant was very badly affected by the abusive conduct of the Store Manager and had been obliged to take sick leave on two separate occasions due to work related stress in 2015 and 2016. It is submitted that had the Complainant been informed of the outcome of her complaint and in the absence of redress being provided, she would have immediately brought her complaint to the WRC. - In the absence of a finding that the running of time had been stayed, the complaint as filed was only marginally outside of the six-month time period by a number of days. - In circumstances where the Complainant was never informed by the Respondent of the outcome of her complaint, nor of the status of the investigation against the Store Manager, there is reasonable cause to extend the time. CA-00008319-001 - Unfair Dismissal It is the Complainant’s contention that she was unfairly dismissed by way of constructive dismissal. She commenced her employment in June 2013 in another store and was there for 3 months before transferring to the store under the Store Manager Mr A who was subsequently the subject of investigation and dismissal by the Respondent. This Store Manager insisted that the Complainant, along with her colleagues would report to work some 15 minutes before shift start time, and leave after shift finish time. There had been no such requirement in the other store. The Complainant gave evidence and was cross examined on the following: She worked in the store under Manager A who, she contends subjected her to wholly inappropriate conduct on a repeated basis. He made comments to her such as that she looked like a zombie when she had no make up on, and that she looked much better when she did have make up on. He promised her promotion, and she was massively disappointed when she was not promoted. She contends that the manager stated to her that if he knew she was British, he would not have accepted her transfer from the other store. The Complainant stated that she had to go on sick leave due to stress in 2015 and 2016. She stated that the manager made a very inappropriate remark to her that had a sexual innuendo, that she had grand hands for milking goats. The Complainant submitted a grievance in March 2016 to HR. The area manager was sent to investigate this. The Complainant stated that this area manager and the store manager Manager A were close friends. The area manager met the Complainant in mid-April 2016 and when she returned to the store, the store manager’s behaviour towards her was even more hostile. As a result of the conduct of the manager, and the fact that nothing was being done about it, the Complainant had to resign from the company. She stated in her resignation letter, dated 14 May 2016, that she was providing a two week notice period, and that she felt it was not possible to satisfactorily resolve the issues raised in her grievance letter of 6 April 2016, and she had no alternative but to resign from her position. One of the Directors came into the Store while she was working her notice, and he started to interview her about matters in the store. However, when she told him she was working out her notice, he discontinued the interview. The Complainant expressed a sense of relief she felt when Manager A was not present in the store during her notice period. In relation to the issue of having to work extra minutes before and after shifts, the Complainant believes this was a matter for a Labour Inspector and that refunds had been made to colleagues, but not to her.
CA-00008319-002 Terms of Employment (Information) Act 1994 The Complainant was required to be in store 15 minutes before the start of her shift and often required to stay in the store later than the end time of her shift. The Complainant gave evidence of having to stay late, even on one occasion when she was due to go on holiday to New York. Her father had to come to the store to get her out of there to enable her to leave. It is contended that the Respondent, by its actions by changing the conditions of the Complainant and not notifying her breached the Act. CA-00008319-004 Employment Equality Act The Complainant contends that the Respondent discriminated against her on grounds of race, gender and promotion opportunities. Further, the Complainant contends that she was victimised and harassed in her workplace and subjected to sexual harassment. The Complainant gave evidence and was cross examined on the following: She worked in the store under Manager A who, she contends subjected her to wholly inappropriate conduct on a repeated basis. He made comments to her such as that she looked like a zombie when she had no make up on, and that she looked much better when she did have make up on. He promised her promotion, and she was massively disappointed when she was not promoted. She contends that the manager stated to her that if he knew she was British, he would not have accepted her transfer from the other store. The Complainant stated that she had to go on sick leave due to stress in 2015 and 2016. She stated that the manager made a very inappropriate remark to her that had a sexual innuendo, that she had grand hands for milking goats. The Complainant submitted a grievance in March 2016 to HR. She eventually had to resign her position because of the treatment she received. In cross examination, the Complainant agreed there was not a specific promotion she was refused, just that she had been promised promotion by the store manager. She stated that she, and two others were denied promotion. She believes it was partly because of her nationality (British). She agreed that the issue of her nationality and Manager A’s remarks was not included in her grievance letter to the company. She was asked did she not see there is a contradiction between her assertion of discrimination on grounds of race and Manager A promising her promotion. In relation to her grievance meeting with the Area Manager, the Complainant agreed she did not want a formal investigation, but she did want the matter dealt with. However, she stated that she was in fear of Manager A, that he was subject to mood swings, and she did not tell the area manager the full story as she knew he and Manager A were close. She has no recollection of receiving a letter dated 3 May 2016 signed by the area manager stating that it had been agreed at their meeting that there would be no formal investigation, that he had a subsequent conversation with manager A and the matter was now closed. The Complainant went to her solicitor when other colleagues / ex colleagues went to have their complaints submitted.
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Summary of Respondent’s Case:
Request to strike out claims The Respondent seeks to have the Complainant’s claims struck out for non-pursuit pursuant to s. 48 of the Workplace Relations Act 2015 and/or to have the claim under the Employment Equality Acts struck out pursuant to s.102 of the Employment Equality Acts. The relevant sections of the Acts provide the statutory power to the Director General of the WRC to strike out a complaint where it is not pursued within a period of one year. In this case, the history shows that the Complainant’s solicitor came on record in August 2016 for a number of employees working in the store, and the list included the Complainant. The Complainant’s complaint form was then not lodged until 22nd November 2016. As the form contained only sparse details, the Respondent’s solicitors were in correspondence with the Complainant’s solicitor between 9th January 2017 and 4th September 2019 seeking details of the claim. At a case management meeting on 31st May 2017, the Adjudicator requested statements for all the employees being represented including the Complainant. These were to be provided by 6th July 2017 and response by 6th September 2017. The Complainant’s statement was not provided and as a consequence the case was not listed for hearing. The WRC subsequently wrote to the Complainant’s solicitor enquiring if the cases lodged were proceeding and threatening to dismiss the claims for non-pursuit. It was only on 6th September 2019 that the Complainant’s solicitor eventually furnished a brief and unsigned statement on behalf of the Complainant. At this point, the case had been listed for hearing on 11th September 2019. This is a highly unusual case. In the circumstances, to permit the Complainant to pursue her claims over three and a half years after she had left the Respondent’s employment would give rise to a gross injustice and prejudice to the Respondent. It is accepted that the powers to strike out for non-pursuit should be invoked only sparingly. However, in this case the Complainant’s inaction in providing her statement in response to the direction of the Adjudicator prevented her case from being listed for hearing. This is a very clear case of non-pursuit and it is submitted that the provisions should be invoked. Time Limits In the alternative, it is the Respondent’s application that the WRC lacks jurisdiction to hear the claims under the Employment Equality Acts and the Terms of Employment (Information) Act as they were not submitted within the statutory time limit and that no reasonable cause has been advanced to justify extending the time limit. In order to have jurisdiction to hear a complaint, a complaint must be lodged within the statutory time frame. Section 41 (6) of the 2015 Act provides as follows: “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.
Section 41 (8) provides: “an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after 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 Employment Equality Acts contain similar provisions at s. 77(5)(a) and 77(5)(b). The Complainant lodged her claim on 22nd November 2016. The six-month period covered by her claim therefore runs from 23rd May 2016 until 22nd November 2016. The Complainant resigned with effect on 28th May 2016 and according to her submissions her last day of employment was 14th May 2016. Further, the subject matter of her claims, the store manager Mr A last worked at the store on 14th May 2016. In respect to her claim under the Employment Equality Acts, the Complainant is clearly out of time as she cannot rely on any alleged incident of discriminatory treatment etc that occurred within the relevant six-month time limit (from 23rd May 2016 to 22nd November 2016) given that neither she nor Manager A were in the workplace from 14th May 2016. Likewise, regarding the Complainant’s claim under the Terms of Employment (Information) Act which relates to being required by the store manager to be on the shop floor 15 minutes before the start time (although it is the Respondent’s position that this claim is misconceived). It is accepted that the Complainant’s claim for unfair dismissal has been submitted within time. The Respondent however vigorously contests the merits of this claim inter alia on the basis that the Complainant did not exhaust the internal procedures before resigning in circumstances where she confirmed she did not want her complaint investigated and where she was offered but refused a transfer as an alternative to resigning. Regarding the claims under the Employment Equality Acts and the Terms of Employment (Information) Acts, it is clear that to have jurisdiction to hear these claims, the Complainant must succeed in her application for an extension of time. It is noted that this application was only made at the first hearing date on 11th September 2019, almost three years after the claim was lodged. To satisfy the test for an extension of time, it must be shown that the Complainant’s failure to present the claims within time was due to ‘reasonable cause’. The principles to be applied in considering if reasonable cause exists were set out in Cementation Skanska v Carroll DWT0338. The Labour Court noted that even if reasonable cause were shown, it should still consider if it were appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Substantive claims Unfair Dismissal claim The relevant facts are as follows: The Complainant commenced employment with the Respondent on 10 June 2013 as a Store Assistant. She resigned with effect from 28 May 2016. She lodged a complaint against her store manager Mr A, as received by the Respondent on 6th April 2016. The Complainant attended a grievance meeting on 19 April 2016 conducted by area manager Mr B. At this meeting the Complainant confirmed that she did not want to proceed formally with her complaint. The minutes of this meeting show that when asked if she wished to proceed with it formally the Complainant stated: “No, I don’t want him to be reprimanded. People are just unhappy. I just wanted to bring it to your attention..It’s not the case that he is a bad guy..” When asked to confirm that she did not want to proceed formally she stated: “Yes, because we get on great. When he is in a good mood it is great..” “Ok well I have decided that I want to keep the confidentiality and I don’t want a full investigation. I would like you to talk to him about the atmosphere in the store.” By letter dated 3rd May 2016, sent to the Complainant by registered post and by regular post, the Area Manager confirmed to the Complainant that the contents of her letter and their meeting was confidential (as agreed by her) and that he would have a general conversation with the store manager regarding interactions within the store. By letter dated 14 May 2016 the Complainant resigned her employment giving two weeks’ notice. The store manager was on annual leave from 14 May 2016 and did not return to work since that date. In her submissions, it is stated that the Complainant’s last day of work was 14 May 2016. On 16 May 2016, the Complainant attended a meeting with Store Operations Director Mr C in the course of an investigation he was conducting into another complaint made anonymously about the store manager. The minutes of that meeting show the Complainant stating that she had handed in her notice because she was not happy with the atmosphere in the store. She confirmed that the area manager had done what had been agreed but that she was not happy. She was offered a transfer by the Director. It is accepted that the Complainant’s claim for unfair dismissal has been submitted within time. The Respondent however vigorously contests the merits of this claim inter alia on the basis that the Complainant did not exhaust the internal procedures before resigning in circumstances where she did not want her complaint investigated and where she was offered but refused a transfer as an alternative to resigning. It is argued that according to the definition of constructive dismissal as contained in Section 1 (c) of the Act, the employee has to show that he/she had no option but to resign from the employment. The Complainant did not utilise the grievance procedure, she never informed the Respondent that she was thinking of resigning and no opportunity was given to the Respondent to rectify her situation. It was therefore unreasonable for her to resign and then claim constructive dismissal. Employment Equality Acts The Respondent relies on the fact that the time limit for pursuing the Complainant’s claim under the Acts runs from 23 May 2016 and her last day of employment was 14th May 2016. The subject matter of her claims, the store manager Mr A last worked at the store on 14th May 2016. In respect to her claim under the Employment Equality Acts, the Complainant is clearly out of time as she cannot rely on any alleged incident of discriminatory treatment etc that occurred within the relevant six-month time limit from 23rd May 2016 to 22nd November 2016 given that neither she nor Manager A were in the workplace from 14th May 2016. It is argued that no reasonable cause was advanced for extending the time. It is argued that the Complainant’s reliance on UPC is misconceived. In that case, the High Court in fact considered by way of an application for judicial review whether the Employment Appeals Tribunal had acted within jurisdiction in concluding that a claim for unfair dismissal was referred within time in circumstances where there was ambiguity over the date of dismissal – being either the date it was first communicated or the date the appeal process concluded. The Employment Appeals Tribunal had found in favour of the complainant to the effect that she had believed her dismissal was stayed pending the appeal outcome. The High Court dealing only with the issue of jurisdiction, found that the particular decision by the Employment Appeals Tribunal was one made within jurisdiction and as such was not amenable to judicial review. The High Court did not however give a decision on the merits of the argument and only concluded that the decision by the Tribunal was made within jurisdiction. The interpretation given to this case in the Complainant’s submission is incorrect and misleading. Moreover, the Labour Court has confirmed that it does not agree with the interpretation of UPC as advanced on behalf of the Complainant. In Pfizer Ireland Pharmaceuticals v Whelan EDA1924, (concerning a claim of discrimination on the grounds of gender and disability in relation to access to a promotion) the complainant sought to rely on the date of the issuing of the report into her complaint against her not getting a promotion as the date from which the time limit started to run and to this end cited UPC. However, the Labour Court did not accept this argument. The Court stated in that case: “The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent her from bringing her complaint within the statutory time limit. In line with its decision in Business Mobile Security Ltd t/a Senaca Limited v John McEvoy EDA1621, the Court does not accept that the internal grievance process can take its course to extend the period for submitting a claim which in any event is limited by Section 77 (5)(b) to a period of twelve months from the date of the occurrence of the event giving rise to the claim.” Further, it is submitted that the Complainant, in her evidence, was unable to ascertain what actual acts of discrimination occurred. She was vague on facts, had no dates and was inconsistent in her evidence. The latter point, especially in relation to the alleged comment on her Britishness, the inconsistency being the manager apparently held out hopes or prospects to her for promotion and why would he do this if he was prejudiced against her. It is argued that the Complainant had not in any case established a prima facie case on which to base her claim. Terms of Employment (Information) Act It is argued that this claim is really a Payment of Wages Act 1991 claim, which has been shoehorned into a Terms of Employment (Information) Act claim. In any event, the claim has been submitted outside the statutory time limit and should be dismissed.
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Findings and Conclusions:
Preliminary Issues
Application for the claims to be struck out for non-pursuit
The Respondent seeks to have the Complainant’s claims struck out for non-pursuit pursuant to s. 48 of the Workplace Relations Act 2015 and/or to have the claim under the Employment Equality Acts struck out pursuant to s.102 of the Employment Equality Acts.
Section 48 (1) of the Workplace Relations Act 2015 provides:
- (1) Where a complaint is presented to the Director General under section 41, the Director General may strike out the complaint where he or she is satisfied that the complainant has not pursued the complaint within the period of one year (or such period as may be prescribed) immediately preceding it being struck out.
Section 102 of the Employment Equality Acts contains a similar provision.
I note the lengthy time span between the date of lodging the complainant’s complaints, being 22 November 2016 and the furnishing of the statement by the complainant on 6 September 2019. There is a history behind the matter, including the fact that there were a number of complaints submitted by the Complainant’s representative, and a case management hearing was held in May 2017. I note the point that the failure to provide particulars of the complaints led to the Complainant’s case not being listed for some two years. The WRC wrote to the Complainant’s solicitor on 3 May 2019, giving the representative an opportunity to respond, thus avoiding the need to exercise the powers to strike out the claims under Section 48 of the Workplace Relations Act and section 102 of the Employment Equality Acts. In the circumstances where the statement was provided on 6 September 2019, I find that to exercise the power to strike the complaint out, especially in light of Section 48 (5) and Section 102 (5) that the complainant would be not entitled to prosecute the proceedings any further, would be unduly prejudicial to the Complainant. In the circumstances, I do not agree to strike out the complaints.
Time Limits
CA-00008319-001 Unfair Dismissals Act
The complaint was received on 22 November 2011. The Complainant’s employment ended on 28 May 2016. It is common case that the claim of unfair dismissal is within the time limits set out in the Act.
CA-00008319-002 Terms of Employment (Information) Act 1994
The complaint is that the Respondent made a change to the Complainant’s terms of employment in relation to an extension of working hours without notifying her of the change in accordance with Section 5 of the Act.
Section 41 (6) of the Workplace Relations Act 2016 provides:
“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.
In Cases No ADJ-00009820, and ADJ-00016102, the Adjudication Officers found that Section 41 of the Workplace Relations Act can be read as referring to a failure to provide a written statement of terms of employment as a subsisting breach. The conclusion in ADJ-00009820 was that the multiplicity of interventions allowed by section 7(2) of the Terms of Employment (Information) Act 1994 shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. Otherwise the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment. In ADJ-00009820 the Adjudication Officer found “While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law. First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period. Applying a conforming interpretation to sections 3 does not, therefore, require an impermissible contra legem interpretation of the section. Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship. Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.”
In this instant case, I find that the same arguments apply to Section 5 of the Act, that the failure to provide notification in writing of the change in the Complainant’s terms of employment was a subsisting breach. As the within complaint was received on 22 November 2016 and the Complainant was still in employment on 23 May 2016, I find the complaint to be within time.
CA-00008319-003 Employment Equality Acts
Section 77 (5) of the Employment Equality Act (as amended) provides:
77 (5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant, paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.
The within complaint was received on 22 November 2016. The cognisable period is therefore from 23 May 2016 to 22 November 2016. The Complainant resigned from her employment on 14 May 2016 with the date of effect 28 May 2016. In order for the complaint to be considered, alleged acts of discrimination or victimisation should have occurred between the period 23 May and 28 May 2016. No evidence was given of such alleged acts. The argument that there was a continuum does not succeed as the Labour Court confirmed in Dunnes Stores v Breda Mulholland EDA 179:
It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint.
I have considered the case made on behalf of the Complainant that the running of the six-month time period should be stayed pending the completion of the internal dispute resolution process as set out in the Respondents grievance procedure. As well as the cases cited by the Respondent, I note the Labour Court Determination in Brothers of Charity Services Galway v Kieran O’Toole EDA177 where the Court held:
The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limits provided for under the Act.
Section 77 of the Act is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC, such a complaint should be in writing and submitted within the time limits provided for in Section 77 (5).
I have considered the alternative argument put on behalf of the Complainant that the time limit should be extended. I note that the Complainant had the benefit of legal advice and representation from in or around 3 August 2016. Had she submitted her complaint then, alleged acts of discrimination from 4 February 2016 could have been adjudicated upon. I further note that the Complainant lodged a grievance in or around 6 April 2016 and, according to the evidence, did not wish to pursue it in a formal manner. In the Complainant’s submission addressing the matter of extension of time, a number of reasons were given in support of her argument that reasonable cause existed for exercise of discretion to extend the time. The reasons relied upon included that - the Complainant was awaiting a decision from the Respondent of its investigation which was ongoing and broadened. - That the outcome of its investigation had not been communicated to her and had delayed the investigation unduly by the Respondent. - That the Complainant had been badly affected by the abusive conduct and had to take sick leave in 2015 and 2016. The Complainant could have lodged the complaint in April 2016 or in August 2016 when she had the benefit of legal advice. I note the evidence presented at the hearing of a letter dated 3 May 2016 posted by regular and registered post to the Complainant confirming the contents of the grievance meeting and closing the matter. In considering whether reasonable cause existed for the failure of the Complainant to present the claim within the six-month time limit, the principles in Cementation Skanska v Carroll DWT0338 are the main parameters relied upon where the Labour Court found that “there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”
I find, in this instant case, no reasonable cause has been demonstrated to extend the time under s.77(5)(b) of the Act.
Having considered the submissions of both parties, and all of the evidence adduced at the hearing of this complaint, I declare that the complaint is out of time and therefore statute barred.
Substantive claims
CA-00008319-001 Unfair Dismissals Act 1977
The claim is that the Complainant was unfairly dismissed by way of constructive dismissal. The definition of constructive dismissal in the Act at Section 1 provides:
“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”
It is well established that in cases of constructive dismissal the burden of proof is on the Complainant to prove that the conduct of the employer was such that it was reasonable for her to resign her employment. Case law includes Donegan v County Limerick VEC UD-828/2011 where the Employment Appeals Tribunal held:
In particular the Claimant must show that the Respondent acted in such a way that no ordinary person could or would continue in the workplace.
In McCormack v Dunnes Stores UD1421/2008 the Tribunal stated:
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 or her employer. 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.
In this instant case, I note that the Complainant utilised the grievance procedure in or around 6th April 2016. This resulted in a meeting with the Respondent’s Area Manager, at which the Complainant clearly stated that she wished the matter to be confidential, that she wished for the Store Manager to be spoken to. The letter dated 3rd May 2016 and posted to the Complainant by regular and registered post, records the agreement and confirms that the manager was spoken to. Subsequently, the evidence shows that a Director of the Respondent visited the Store, interviewed the Complainant and offered her a transfer as an alternative to resignation. I find that the Respondent took measures including the processing of the Complainant’s grievance and the offer of an alternative to resignation. In the circumstances, the Complainant has failed to discharge the burden of proof placed on her. I declare her complaint of unfair dismissal to be not well founded.
CA-00008319-002 Terms of Employment (Information) Act 1994
I accept the Complainant’s evidence that when she first worked for the Respondent in a different Store she was not required to come to work fifteen minutes before her shift and that this condition changed when she came to the Store she eventually resigned from. For reasons stated above, I have decided that this was a continuing change in her conditions of employment and the failure to notify her in writing was a continuing breach of Section 5 of the Terms of Employment (Information) Act 1994. I declare the complaint to be well founded. I require the Respondent to pay to the Complainant the sum of €1,380 compensation which is based on a calculation of what amounted to 4 weeks pay in relation to the Complainant’s earnings at the time of the ending of her employment.
CA-00008319-003 Employment Equality Acts
For reasons set out above, these complaints are out of time.
Decision:
CA-00008319-001 Unfair Dismissals Act 1977
For the reasons cited above I have decided the complaint of unfair dismissal is not well founded.
CA-00008319-002 Terms of Employment (Information) Act 1994
I have decided the complaint is well founded. I require the Respondent to pay to the Complainant the sum of €1,380 compensation
CA-00008319-003 Employment Equality Acts
I have decided these complaints are out of time.
Dated: 14th July 2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal, constructive dismissal not well founded. Employment Equality complaints out of time. |