ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00028765

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	A Greeting Card Company

Representatives

The claimant represented herself and was accompanied and also represented by her husband

Niall O'Connell Corporate HR Ireland

Complaint(s):

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-00038379-001	25/06/2020

Date of Adjudication Hearing: 18/03/2021

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The claimant was employed by the respondent from the 1st.June 2002 to the 27th.March 2020 – she alleges that she was constructively dismissed and was obliged to leave the employment owing to the conduct of her employer.

Summary of Complainant’s Case:

The claimant submitted that she had made the complaint because she had been so unfairly treated by the respondent resulting in considerable distress for her notwithstanding her 17 years working for the respondent. She set out a chronology of her career with the company and advanced that the respondent attempted to implement significant changes in 2018 without consultation with the workforce. She asserted that staff saw themselves as part of the company and wanted the company to succeed and that in the end the respondent took on board the views of the workforce. The claimant said that in early 2020 she reached a point of exhaustion and decided to seek a flexible working arrangement to reduce her working hours. She declined to pursue the matter before Valentine’s Day as this was a particularly busy time for the company. She met with Ms.A on the 20.02.2020 and asked if she could reduce her hours by 3 hours per week by finishing work on Fridays at 1.30p.m. She asserted that she offered to cover the work “ so there would be no disruption to the business”. She was hopeful of positive consideration .She was not asked why she wanted reduced hours and Ms.A said she would have to discuss it with the Deputy MD.As no reply was forthcoming she approached Ms.A on the 27.02.2020 – she was advised that her request was being declined as it could create a precedent .She was satisfied that other staff had been previously accommodated with reduced working weeks – Ms.A said that she would try and accommodate her in some way as the claimant was one of her right hand girls – Ms.A suggested that she could slip out of work after other colleagues had left and she could tell her colleagues that she had gone to another warehouse. The claimant stated that she found the response completely unacceptable and felt there was no formal procedure for considering the request with the seriousness it deserved. The claimant was totally deflated and submitted that she was never advised to pursue her request through the Company grievance procedure. She felt let down and believed she was shown no compassion. After a sleepless night the claimant concluded the only option open to her , in order to protect her health and well being , was to hand in her resignation. She asserted that she was forced into this action as the company had breached their duty “ of mutual trust and confidence”. She handed in her resignation to Ms.A at 10.00am on the 28.02.2020 and that evening was handed a letter confirming the company’s acceptance of her resignation.The company had not questioned why an employee with 17 years service was handing in her notice without a job to go to.The claimant believed her resignation suited the company as they were seeking to make further redundancies.She asserted the respondent had already trained up a casual worker to take over her role.” By refusing my request and forcing me into resigning would give them the same outcome but with less cost”.

The claimant believed her request was reasonable and would have no impact on the business.

Under cross examination the claimant was asked why she didn’t invoke the grievance procedure or raise the matter while she worked out her notice. The claimant said that she had hoped to resolve the matter informally and did not see her complaint as a grievance. When questioned if she resigned through her own free will , the claimant responded that she had no alternative but to resign because of the unreasonable behaviour of the employer. The claimant was adamant that she was never asked to take time out to reflect on her resignation and stated that if she had been given that opportunity she would have availed of it and discussed the matter with her husband. It was put to the claimant that she left with dignity , that she had been accommodated 2 years previously with a revised attendance arrangement and that she had a 4 week notice period to pursue a grievance but did not do so. The claimant stated that it was only after she left that she reflected on how badly she believed she had been treated and this coincided with the start of the first lockdown.

Summary of Respondent’s Case:

The respondent’s representative presented the following submissions on behalf of the claimant:

The respondent’s representative chronicled the following sequence of Dates regarding the complainant’s ’s request to amend her working week to finish work every Friday at 1.30pm.

The complainant was a long standing and highly respected employee of the respondent as a Warehouse operative. On the 20th of February 2020 the claimant entered Ms A’s – Directors- office to seek to finish work every Friday at 1.30pm with immediate effect.

Ms .A informed the complainant that she would discuss her request with Ms B,Deputy Managing Director, upon her return from an overseas business trip and revert to her as apriority. Please note the claimant was facilitated previously regarding a change to her working hours from 9am to 5.30pm to 8.30am to 5pm on the 9th of March 2018.

Upon ’Ms.B s return to work from her business trip on Tuesday the 25th of February 2020 a

discussion was had around the commercial practicality and viability of facilitating the claimant’s request and due only to business & practical / operational reasons on this occasion her request could not be facilitated at this juncture.

Operationally Friday would be one of the busiest days along with Monday preparing orders for the following week and dispatching orders on a Monday for the rest of the week. The seasonality of the business comes into play here trying to manage the day-to-day operations of the business along with the Seasonal business which would ordinarily run for circa 9 to 10 months of the year.

On the 27th of February the claimant had a further meeting with Ms A where she was

informed her request could not be facilitated at this juncture due to business and operational

constraints. The complainant informed Ms A she had a lot to think about.

On the 28th of February 2020 the claimant handed in her resignation notice in writing to Ms B and finished up with the Company as an employee on the 20th of March 2020. Please note the Company wanted the complainant to take the weekend to reflect on her position and meet with her again the following Monday to review the situation on offer however she declined to accept. Confer attached resignation letter and acceptance letter.

On the 20th of March 2020 a going away party was organised by the Company to officially recognise her contribution to the Company over her years of service and flowers and refreshments were organised by the Company.

It was submitted that the Company was genuinely extremely sorry to see the complainant leave the organisation.

Company Defence Submission into alleged unfair Dismissal Claim:

On the 8th of December 2020 the Company received formal notification from the WRC that the claimant had initiated formal proceedings against the Company for an Unfair Dismissal claim. The claimant was a highly respected employee of the Organisation over a long period of employment with the Company as a Warehouse Operative.

As outlined above the sequence of events that ultimately lead to the claimant resigning from the Company in writing was an event that the Company truly endeavoured not to happen.

The respondent over a 32-year history at all times are fair & reasonable with their staff, provide a safe place of work for all their staff and adhere to best practice HR & Employment Law guidelines at all times.

On the 31st of December 2020 the complainant sent 2emails in error to the respondent which related to her WRC submission which the Company formally notified her of same in an email upon receipt of them.

The manner and timing at which the complainant handed in her notice in writing to leave the Company was very regrettable from the Companies perspective as she was a valid and highly respected employee of the organisation.

At no stage in this process around her request to finish work on a Friday at 1.30pm did the complainant formally raise a grievance or seek to speak formally to the Deputy Managing Director of the Company or the Companies HR Advisors Corporate HR Ireland.

The Company fundamentally believes from a HR & adherence to employment Law Due Process perspective it has no formal case to answer here with regard to the complainant’ s claim for Unfair Dismissal and how she left the organisation of her own discretion and choice.

The Company strongly encouraged the complainant to take a few days to reflect on her formal notice in writing to leave the Company which she declined.

Also please note that the Global Pandemic started in March 2020 and in June 2020 the company had to restructure its operating business model in order to ensure it remained commercially sustainable post the pandemic and made a number of staff redundant as a result of the Company restructuring process.

It must be strongly emphasised that there is no absolute link between the claimant resigning her role in writing to leave the Company on the 28th of February 2020 and the very

unfortunate & unplanned Redundancy process in June 2020 that transpired in the Company as a direct result of the Covid-19 Pandemic.

The Company Directors are most upset that a long-standing employee of the organisation has made such allegations against the 32-year Brand name of the company whose origins are in rural Ireland where it is proud to provide meaningful and rewarding employment for its fellow neighbours &citizens.

The Directors fundamentally believe that the complainant has no HR or Legal recourse on how she left the organisation at her own discretion.

Under cross examination the claimant was asked on a number of occasions why she did not use the grievance procedure and she repeated that she did not see her request as a grievance and that in any event the company was family run and hoped to resolve the matter informally. The respondent suggested that this was an opportunistic complaint related to the ensuing redundancy arrangements after the claimant left the company and argued that the claimant had failed to satisfactorily answer the questions that were put to her about procedures.

Ms.A gave evidence of her exchanges with the claimant about her request , her exchanges with the other Directors on the Board and their decision to accept the claimant’s resignation. Ms.A was adamant that when she was given the resignation letter she suggested to the claimant to reflect on her decision over the weekend and in the meantime she would place her letter in a drawer. She asserted that the claimant sated in response “I’ve made my decision”. It was suggested to the witness that she had initially turned down the claimant’s request because the company did not want to set a precedent but had since changed to grounds to operational reasons.

Ms.A stated that she had no recollection of suggesting that the claimant slip away on Friday afternoons and clarified that no minutes were taken of the remote meeting with the Board of Directors about the resignation.

Findings and Conclusions:

Findings and Conclusions:

Constructive Dismissal

The definition of dismissal at section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, was it reasonable for her, or was she entitled to terminate her employment?

Many authorities on constructive dismissal point to the requirement for a complainant to show that the conduct of the employer must fail at least one of two tests, the contract test and the reasonableness test.

In Western Excavating (ECC) Limited v Sharp [1978] (IRLR 332), Lord Denning concluded;

“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 discharged from any further performance.”

The claimant has indicated that she resigned in haste and it was only some time after she had left and finished out her 4 weeks notice that she reflected on how badly she perceived herself as having been treated as a long standing employee. The claimant did not dispute the respondent’s contention that she had previously been accommodated with alternative attendance arrangements in 2018.No evidence was advanced by the claimant of a contractual commitment to facilitate alternative attendance patterns and consequently I have concluded that there was no breach of contract such that the complainant was entitled to discharge herself from her job.

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh stated:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

There was a complete conflict of evidence between the parties in relation to the matter of whether or not the claimant was given time to reflect on her resignation - in this regard I found on the balance of probabilities that the evidence of the complainant was more consistent and credible than the respondent’s witness. Notwithstanding this the claimant ws unable to advance any reason why during the period of her notice she did not seek to engage with the respondent on the reasons for her resignation or indeed seek to have it suspended or withdrawn. While I fully accept that best HR practise would recommend that a prudent employer enquire into the sudden resignation of a long standing employee, I cannot accept that this failure to observe best practise amounts to repudiation of the claimant’s contract of employment.

An employee who claims to have been constructively dismissed must show that they made efforts to resolve the concerns that give rise to their resignation by using the internal grievance procedures. The complainant asserted that she wanted to resolve her complaints informally but advanced different grounds at both hearings for her failure to invoke the company grievance procedure. At the first hearing she stated it was because she didn’t see the issue as a grievance and wanted to resolve the matter informally while at the second hearing she stated it was because this was a family run company and the outcome would not have been any different. No convincing explanation has been proffered for the failure to exhaust the company’s internal procedures .

The burden of proof required in cases of constructive dismissal is a high bar for a complainant. I find that, in the case under consideration here, the complainant has not shown that the conduct of her employer was so unreasonable that she had to leave her job, or that there was a fundamental breach in her contract of employment that made the continuation of her employment untenable.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the complainant has not demonstrated that her employer behaved so unreasonably, or that there was a fundamental breach in her contract of employment that she had to resign from her job. In light of this finding, I have decided that this complaint of constructive dismissal under the Unfair Dismissals Act is not well founded.

Dated: June 4th 2021

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Key Words: Constructive Dismissal ; Grievance Procedure