ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029277
Parties:
| Complainant | Respondent |
Parties | Mary Cummins | Sakura Hairdressing Limited |
Representatives |
| James Larkin ESA Consultants |
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-00039236-001 | 19/08/2020 |
Date of Adjudication Hearing: 22/06/2021 and 13/10/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that she satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That is to say that the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. 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 this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 19th of August 2020) issued within six months of her Constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage in and exhaust all internal mechanisms which might be available in a given workplace before tendering a resignation. I would have regard for the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
This hearing was initiated by Workplace relations Complaint form which issued on the 19th of August 2020 wherein the complainant alleges that she was Unfairly Dismissed and seeks compensation for the financial loss. Two separate days were set aside for the hearing of this case. To overcome the health concerns associated with face to face hearings in the course of the Covid pandemic, the WRC has been assigned the status of a “designated body” under SI 359 2020 for the purposes of Section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act of 2020. This has allowed the hearing of this case to be held remotely. I confirm that this facility (on the WebEx platform) is organised and Hosted by the WRC. I am satisfied that neither party was unduly prejudiced by reason of having this hearing conducted remotely. In line with the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) it is confirmed that this case may be attended by any member of the Public who may wish to attend (including where such attendance is at a remote hearing). This issue initially came before the WRC before the enactment of the Workplace Relations (miscellaneous Provisions) Act 2021 and the parties agreed to proceed in absence of the Oath and Affirmations (as provided for under the 2021 Act). I am, however, satisfied that the parties approached the matter of giving evidence with due solemnity. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. I was also provided with supplemental documentary evidence ( in the form of text messages and emails) in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the by the Respondent’s Representative. The Complainant alleges that she was Unfairly dismissed. She believed the Respondent was fundamentally changing the terms of her Contract of Employment which might, she says, have been acceptable to her in the circumstances of an ongoing health pandemic, but which was unacceptable where no limitation or review clause was being inserted into the proposed change in the Contract of Employment. The Complainant believed that at the end of the pandemic she would be left with a permanently altered Contract of Employment with no opportunity to return to her pre-pandemic terms and conditions of employment.
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Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent Representative made submission on behalf of the Respondent and I additionally heard evidence from a number of witnesses including the Salon owner. The Respondent witnesses were cross examined/questioned by the Complainant. The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute. The Respondent was seeking the support of his staff in very difficult and uncertain circumstances. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant herein is a senior hairstylist who commenced her employment with this Respondent in 2005. In June of 2020 the Complainant was notified that the Respondent hair salon was getting ready to reopen after the extended lockdown introduced in response to the Covid pandemic. The Complainant had been out of the workplace on a Government prescribed Layoff since March 2020 and had been in receipt of the PUP entitlement. The Complainant attended a one-to-one meeting on the 4th of June with owner/ Directors of the Hair Salon. To her surprise the Complainant was notified by the company principal GF, that the plan was to implement a comprehensive new plan to change the way the workplace would operate into the foreseeable future. The objective appears to have been to ensure Covid compliance across the workplace ( in terms of reduced numbers in the workplace at any one time) and to ensure all employees would be fairly included. The Complainant was uneasy about the proposed changes as it seemed to her that the nett result for her would be decreased remuneration and increased hours of work. Initially, the Complainant flagged that she would only submit to the proposed new arrangements if GF could guarantee that it was intended to be a temporary arrangement and that a review date would be incorporated into any modified Contract of Employment. The Respondent handed the Complainant the proposed new Contract at this one to one meeting. There was a small amount of communication between the complainant and management in that period of time until on the 18th of June the Complainant was contacted and asked if she was happy to sign the Contract? The Complainant indicated by text that she was not. There was no further discussion and the complainant was advised that she needed to have the Contract signed and returned by the 22nd of June as the plan was to have the salon re-opened on the 29th of June. The Complainant sent a strongly worded email saying she felt ignored and overlooked and requested that she have a meeting with FG who after all had been her employer for fifteen years. On the 23rd of June the complainant was invited to make a formal Grievance. The Complainant forwarded the grievance and reminded her Employer that she was happy to return to the workplace once the temporary nature of the change in her Employment Contract was acknowledged. She handed in her Notice. On the 25th of June she received a registered letter. They expressed concern that she hadn’t attended staff meetings in the last couple of days. She felt that they had her Grievance on notice since early June. She agreed to go into the workplace and meet with GF on the 29th of June. They discussed the proposed new payment structure. The complainant felt that it would be detrimental to her earnings and she was reluctant to have to rely on others for the purpose s of her bonus and commission aspect. She had always only relied on herself for these monies in that past. By way of compromise she suggested that they would incorporate a review for three months time and then another one three months after that. The Complainant conceded that the issue was still open when she left the meeting on that day. I have carefully looked at the email messages which passed between the parties between the 18th of June and the 29th of June. On balance, I accept that the Respondent was trying to put a plan in place to assist all members of staff get back to work and get back earning. It seems that that there was a can do attitude being promoted and which was being sought from the workforce. In of itself, I accept that this was a laudable approach and I note that there was almost universal buy-in from the staff. However, I also have to try and understand where the Complainant was coming from. It is clear right from the start (June 4th) the Complainant was uneasy about these proposed changes. I accept that the Complainant had no difficulty with changes in response to the emergency, but she foresaw an open-ended Contract change from which there would be no return. Whilst the Manger did text that there would be reviews, the Complainant wanted an in-built review clause so that as and when things normalised she would return (if she wanted) to her old pay structure and not remain indefinitely on a pay structure which she anticipated would leave her less well off. On balance, I would have to find this proposal to be not unreasonable. For reasons only the Employer can know, there was an unwillingness to provide the Complainant with the comfort she sought in this regard. This was, after all, an Employee of fifteen years standing and the insertion of a review clause did not seem detrimental either way. Even after hearing the evidence of the parties herein, I cannot quite understand how and why things escalated in the manner that they did. The Complainant certainly resigned her job in a peremptory way, but her Employer never really sought to persuade her to stay. There is a suggestion that the Complainant was already looking at alternative employment even as she notifies her resignation. As I have said I do not think her request for a review clause was unreasonable and the failure to recognise her personal concerns while trying to implement plans for the greater good cannot be overlooked. On balance I accept that the Complainant felt that she had no alternative other than to resign her position. Her Contract was being fundamentally interfered with. However, I do think that the resignation was premature and in assessing losses I am keeping that fact and the fact that she has a much sought after skill set in mind. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00039236-001 The Complainant was constructively dismissed and I award €2,000.00 compensation for any financial loss attributable to the dismissal. |
Dated: 26th November 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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