ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032411
Parties:
| Complainant | Respondent |
Parties | Karen Adams | A.S. Watson (Health And Beauty Ireland) Limited Superdrug |
Representatives | Paul Henry SIPTU | Duncan Inverarity, A&L Goodbody |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00042808-001 | 03/03/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00042808-002 | 03/03/2021 |
Date of Adjudication Hearing: 05/10/2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation. Evidence was taken on affirmation in this case.
The parties were also notified of these changes by the WRC in the letter confirming details of the hearing.
At the outset of the hearing the Complainant’s representative was informed by the Adjudication Officer that the requirement for a submission in a constructive dismissal case was requested on four occasions by the WRC and all those requests were ignored. The respondent representative also wrote to the complainant’s representative on at least two occasions requesting a submission and these were also ignored. The complainant’s representative was advised by the Adjudication Officer that when a complaint is submitted on behalf of a complainant he is required to comply with the procedures set out by the WRC and to provide the required documentation when requested by an Adjudication Officer.
Background:
The complainant was employed as a Nail Technician with the respondent. She commenced employment on 21/11/2017. In October 2019 the complainant raised a number of grievances with the respondent. The respondent investigated these and, apart from one particular grievance, these grievances were either resolved or partially resolved in the complainant’s favour. She commenced a period of sick leave due to work related stress. In March 2020 she raised two other grievances, and these were investigated by the respondent. The complainant wished to resume work and she raised the outstanding grievance in relation to paid breaks. She was not happy with this and on 20/07/2020 she sent a e mail stating that “she was leaving work on constrictive dismissal….” The respondent continued to engage with her in relation to outstanding grievances and asked her to consider her decision. On 17/08/2020 the complainant confirmed that she would not reconsider her decision. She submitted her complaints to the Workplace Relations Commission on 03/03/2021. She worked 16 hours per week and was paid €1,400 gross per month. The respondent raised a preliminary matter in relation to jurisdiction. |
Summary of Respondent’s Case:
The respondent raised a preliminary issue in relation to the jurisdiction of the WRC to hear this complaint as it is out of time. The complainant submitted her resignation on 20/07/2020 and submitted her complaint to the WRC on 03/03/2021. That is a period in excess of the six-month timeframe outlined in the Act. Section 41(6) of the Workplace Relations Act 2015 provides that: “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”. The respondent also submitted that the decision of the Employment Appeals Tribunal (EAT) in Walsh v Health Service Executive (UD 501/2007) is relevant. This decision confirmed that the date of dismissal in a constructive dismissal case in the date upon which a complainant submits his or her resignation, not the date on which her resignation is accepted. The respondent noted that this decision relied on the Labour Court case of Millett v Shinkwin ([2004] ELR 319), which stated: “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation”. The Labour Court also noted that “the acceptance of the resignation by the employer is not required in order to determine the contract”. The facts of this case are that the complainant submitted her resignation on 20/07/2020. She was offered an opportunity to withdraw her resignation and allow the respondent to resolve any outstanding grievances. The complainant did not withdraw her resignation at any stage but confirmed that she would not be doing so on 17/08/2020. The complainant has put the date of 04/09/2020 as the date of her constructive dismissal on the complaint form. This was the date she received a final pay slip from the respondent. The complainant also submits that she is entitled to notice which would have the effect of changing her date of constructive dismissal. It is the respondent’s position that the case of Stamp v McGrath (UD 1243/1983) held that in cases of “constructive dismissal” notice entitlement is not taken into account when assessing the date of dismissal. In this case if it were the complaint is still out of time. The complainant has submitted her complaints to the WRC on 03/03/2021 which is six weeks late. There is no application to extend the statutory time limit. It is the respondent’s position that the complains are statute barred and the Adjudication Officer has no jurisdiction to hear them. |
Summary of Complainant’s Case:
The complainant worked for the respondent from 21/11/2017 until 07/09/2020. The complainant resigned from her employment as the respondent did not deal with her grievances. The respondent continued to deduct monies for paid breaks that were an implied term of the complainant’s contract of employment. The complainant was due to resume work in July 2020 following a period of certified work-related stress. The complainant was contracted to work 16 hours per week and these hours were worked over two days. She was a diligent worker and carried out her role in a professional manner. There were continuous issues in relation to payroll matters and these were brought to the attention of various levels of management. The effect of having to continuously raise these issues was that the complainant was certified as unfit to attend work due to work related stress. She successfully rehabilitated herself and was in the correct frame of mind to resume work in July 2020. The respondent communicated with her about various conditions which involved supplying her own PPE equipment, and a revised roster which removed the paid breaks which were part of her terms and conditions since she commenced employment in 2017. The complainant felt that she had no option but to consider resigning on 20/07/2020. Following intervention from the HR advisors the complainant engaged with remote meetings in which she raised the issues of concern to her. It was submitted on behalf of the complainant that this process “placed a stay on her intention to resign”. As there was no prospect of the issues being resolved and in particular the insistence that paid breaks would be discontinued the complainant considered her future with the respondent and having raised her concerns with all levels of management she firmly believed that she had no option but to resign. It was submitted on behalf of the complainant that the date of termination of her employment is 17/08/2020. Between 20/07/2020 the respondent’s representatives had engaged with the complainant on a number of occasions. This intervention put a stay on her resignation. |
Findings and Conclusions:
The first issue to be determined is if the Workplace Relations Commission has jurisdiction to hear these complaints. The factual matrix is that the complainant submitted her resignation on 20/07/2020 and submitted her complaints to the WRC on 03/03/2020. That is a period of seven months and 11 days. The complainant’s representative submits that the date of dismissal is 17/08/2020. As the complaints were submitted to the WRC on 03/03/2020 this is a period of six months and 14 days. Both dates, 20/07/2020 and 17/08/2020 are clearly outside the six-month period within which the complainant should have submitted her complaints. I note that the complainant had the benefit of trade union representation at all times. The complainant’s representative confirmed to the hearing that no application to extend the time due to “reasonable cause”. There was no basis submitted on behalf of the complainant as to why she failed to present her complaint within six months of her “constructive dismissal”. I accept that the decision of the EAT in Walsh v Health Service Executive (UD 501/2007) provides a definitive determination that the date of dismissal in a constructive dismissal case is the actual date that a complainant submits their resignation. In this case that date is clearly 20/07/2020. This resignation was also submitted in unambiguous and unconditional terms. The e-mail submitted on 20/07/2020 concluded by stating: “Today I am leaving work on constructive dismissal and I am proceeding with a complaint to the WRC in regard to all pay issues. Regards, Karen Adams.” Given the findings above I have concluded that I do not have jurisdiction to hear these complaints. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(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 do not have jurisdiction to hear these complaints. |
Dated: 20th October, 2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Constructive dismissal. Time limits. |