Complainant

Respondent

Parties

Elizabeth  Walsh

Ikea

Representatives

Michael McGrath , IBEC

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-00039636-001

07/09/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Four witnesses were available to give evidence at the hearing.  All witness took the affirmation at the outset.

The complainant was employed by the respondent as a Sales Co-Worker from June 2009. She submitted her resignation on 19 February 2020.

The complainant submitted that she had been working 3 days a week for a number of years.  She indicated that problems started in 2019 following moves by the company began to make changes to the working patterns it expected from its employees.

The complainant submitted that she had been working a 3-day working week on the basis of her medical needs.  She submitted that the company was moving towards having part-time employees working 5 days a week and moving towards working three weekends out of every four.  The complainant submitted that she would have found this difficult as the times that she was being asked to work were the times when there were to the greatest number of customers.  She explained her situation to her line manager and initially there was not a problem with this.

However, in 2019 she submitted that this became more challenging and she was referred to the company doctor for an occupational health assessment.  The doctor recommended that she continue working three days a week. 

The complainant submitted that she was offered a 16-hour contract (as opposed to the 20-hour contract she was on) and submitted that this would amount to a new contract.  The complainant submitted that she did not want to take this step, so she was left with no choice but to hand in her resignation.

The respondent submitted that the complainant had not exhausted all of the internal options open to her, particularly its grievance procedures and that accordingly the complainant had options other than resignation open to her.

The respondent submitted that it offered flexibility to the complainant in a number of ways.  At the time of her resignation the occupational health report on the complainant certified that she was fit for a 3-day working week for the complainant, opined that the doctor would not recommend a 5-day working week and suggested a review scheduled for 4 months hence.

Following receipt of the complainant’s letter of resignation, the respondent submitted that it offered the complainant a meeting encouraging her to reconsider her ‘drastic’ course of action.

The respondent submitted that the complainant was not given a ‘take it or leave it’ option but rather was invited to continue in discussions. It was also submitted that no ultimatums were given and that it did not want to break her contract.  The respondent submitted that the complainant’s failure to exhaust any and all internal procedures was fatal to this complaint.

The complaint outlined a series of positions adopted by the employer in relation to her contracted working hours.  She outlined the steps taken by her line manager and the HR section including reference to an occupational health specialist and subsequent discussion of his recommendation with the complainant.  She also outlined the difficulties she had with attending the employer’s premises arising from her medical needs and the change in the location of her home base.  She outlined a process that the employer was following together with the informal steps she took to engage with the process.   She also confirmed that she did not take a formal grievance, but rather understood that the steps she was taking were adequate.

However, the respondent outlined a process that was ongoing in relation to resolving the difficulties faced by the complainant in relation to her attendance at work.  It noted that the complainant had not exhausted its internal procedures.

Having considered the written and oral submissions of both parties, I am satisfied that the complainant submitted her resignation while a process to cater for her difficulties was ongoing.  This process was not the grievance procedures, which were not invoked by the complaint, but was nonetheless an ongoing process aimed at resolving matters, including a review of the existing situation by the Occupational Health specialist four months further down the line and an invitation to re-engage with the employer after handing in her notice.  Even if the process to address her concerns had concluded, I am satisfied that it was open to the complainant to take a grievance under the employers’ procedures. 

Section 1 of the Unfair Dismissals Act 1977 defines constructive dismissal as follows:

“dismissal”, in relation to an employee, means—

 (b) 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, or

Having regard to the written and oral evidence in relation to this complaint, I am not satisfied that the complainant has established that there was any conduct on the part of the employer over which it was reasonable for her to terminate her contract of employment.  Accordingly, I find that the employee was not unfairly dismissed.

Arising from my findings and conclusion in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissals Act, conduct of the employer, grievance procedure, internal processes.