FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : GET FRESH VENDING LIMITED (REPRESENTED BY STEPHEN O’SULLIVAN BL, INSTRUCTED BY VP MCMULLIN SOLICITORS) - AND - MS MARY WALSHE DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00018708 CA-00023312-001 This is an appeal by Ms Mary Walshe (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00018078, dated 7 October 2019) under the Unfair Dismissals Act 1977. The Notice of Appeal was received by the Court on 12 November 2019. The Court heard the appeal in a virtual courtroom on 26 March 2021. This is a claim of constructive unfair dismissal. At first instance, the Adjudication Officer held that the Complainant’s case was well-founded and awarded four weeks’ compensation as the evidence was that the Complainant had been unfit for work following her resignation and up until the date of the hearing. She had been in receipt of illness benefit during that period. The Complainant was employed as a Catering Assistant in a school setting by Get Fresh Vending Limited (‘the Respondent’) from 28 April 2014 until she resigned her employment on 10 September 2018. Her grossly weekly pay was €214.88. The chain of events that culminated in the Complainant’s decision to resign her employment commenced on 24 May 2018. A graduation ceremony took place in the school setting on that date. A colleague of the Complainant’s used the Complainant’s hair net without consent. This led to an inappropriate verbal exchange on 25 May 2018 between the Complainant and the colleague, potentially within earshot of school pupils. The colleague who was allegedly verbally abused reported the incident to the Principal. The Principal in turn reported the incident to a director of the Respondent, Mr Bill McGill. Mr McGill instructed a colleague from head office to take a written statement from the Complainant, the colleague and a witness to the incident of 25 May 2018. The Respondent thereafter invoked the disciplinary procedure against the Complainant because of her behaviour towards her colleague on that date. Mr McGill conducted the disciplinary hearing at which the Complainant was accompanied by the school Secretary. On 2 August 2018, Mr McGill imposed a final writing warning of six months’ duration on the Complainant. The Complainant was advised of her right to appeal that sanction. The Complainant did not avail herself of her right of appeal, opting instead to instruct her Solicitor to send a letter to the Respondent taking issue with the manner in which the disciplinary process had been conducted and requesting that the final written warning be retracted. The Complainant resigned her employment on 10 September 2018. She told the Court that she made the decision to resign because of Mr McGill’s ‘attitude and unreasonable behaviour’ and because of the disciplinary sanction imposed on her. Her written submission documents a number of incidents that occurred in the workplace in 2017 and 2018 that were unconnected to the events of 25 May 2018 and are not, in the Court’s view, sufficiently proximate to her resignation of 10 September 2018 to be regarded as causative factors underlying that decision. The Complainant was in receipt of illness benefit for some two years following her resignation. Discussion and Decision A Complainant in a constructive unfair dismissal case faces a high bar in establishing that it was reasonable for her to resign her employment in response to her employer’s alleged unreasonable conduct and/or breach of contract. A Complainant is expected to exhaust all internal procedures available to her in an effort to give the employer an opportunity to address any reasonable concerns she may have before resigning. The Complainant in the within case was subject to a disciplinary process because of her alleged verbal abuse of a work colleague. The Respondent, having heard the Complainant’s version of the events that occurred on 25 May 2018, decided to impose a final written warning on her. The Complainant was informed in writing of her right to appeal that sanction but chose not to do so. She cannot, therefore, be said to have exhausted the internal procedures available to her before resigning. The Court, having considered both Parties’ detailed evidence in relation to the manner in which the disciplinary hearing was conducted, and the Complainant’s evidence as to why she chose not to avail herself of her right to appeal, finds that that there was nothing inherently unfair in the procedures followed by the Respondent. The Court further finds that the Complainant has failed to meet the high bar of demonstrating that the Respondent was in breach of contract and/or acted in a fundamentally unreasonable manner towards her such as to justify her resignation from her employment. The appeal fails and the decision of the Adjudication Office is set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
