Complainant

Respondent

Parties

Jade  Gannon

Fides Playhouse Ltd

Representatives

  Complainant represented herself

Rebecca De Groot Peninsula

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-00047012-001

05/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00047012-003

05/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047012-004

05/11/2021

This case is concerned with a claim of constructive dismissal a failure to notify of changes in terms in writing and holiday pay on termination.

Complainant Evidence

Constructive Dismissal

The Complainant commenced working with the Respondent on 9th July 2018 and her employment was terminated by her on 17th August 2021. She was employed as a housekeeper. The rate of pay was the minimum wage until the end of July 2021 when she received an increase which left her with gross pay of €240.00 per week for a 20-hour week. Not long after she started, she was given additional responsibilities.

The Complainant gave evidence that most of the time she enjoyed her work and had a good relationship with others working there. Difficulties began in 2020, she spoke about one person(R) not being very nice to her and of being unpleasant to her in front of other staff. The situation began to affect her, and she went to management stating her concerns, but their response made things worse. The situation became too much for her and she found it very upsetting. She made a formal complaint on 30 May 2021. She followed up for a response and she was told there would be a meeting with her. The written response she received from management on 29 June 2021 she described as attacking her work and her character and nothing was being resolved. It was at that stage she received a copy of the Respondents Ant-bullying policy. The situation became too much, and she then wanted to refer the matter to the WRC. None of the Respondent’s procedures and policies were followed. They never spoke to her about her complaint before writing to her and she was not expecting the reaction that she received. The Company policy on bullying and harassment was not received in a timely manner. She loved her work, but her issues were never resolved or answered. Her situation was made worse because she heard that other staff were spoken to, but she was not. There was no report. There was one meeting-on 6 July-she was told there would be a meeting. On that day there was an incident with R. She was finished work when she was called to the snug by a manager and a director was also there. This was not a private place for a meeting. She was told they were there to talk about her work, it was all very unprofessional. She did not get a chance to talk about the issues. They said they would call a general meeting. Not all staff were there. It was described as a team briefing; they spoke about stock and footfall-there was no mention of bullying in the workplace. After the meeting there were numerous issues with the same person as before, ongoing upset. In response to questioning she said she had brought up things informally since September 2020 with two managers-issues about remarks/snappiness/being excluded.

At the meeting on 9 July the person named as R approached her-but she felt she could not talk about it right then.

Following the meeting with the managers on July 6th she wrote to them addressing some of their claims and outlining how her complaint was not dealt with properly.

On 9th August she handed in her resignation. She required medical support at this time, and she terminated her employment with effect from August 17th, 2021.

Terms of Employment (Information) Act 1994

In the complaint form the Complainant stated that she had not received a statement of terms of employment. In her evidence the Complainant stated that she did sign a document which she believed was a contract of employment, but she did not receive a copy of this at the time or at any time afterwards. At the hearing she stated that when her duties changed, she had more responsibility with more hours, and she asked for a renewal of her contract and a job description which she did not receive, and her contract was not amended when she received a higher rate of pay in 2021 and her claim was related to the failure to provide updated terms in writing.

Organisation of Working Time Act 1997

The claim form stated that she did receive her annual leave entitlements for 2021 but had not received her accrued annual leave for 2020. [The leave year in the employment contract was January to December]. The Respondent provided details of payment of holiday pay and the Complainant at the hearing was unsure of the calculations and was provided with an opportunity to consider material to be provided by the Respondent. Following the hearing documents were provided by both parties regarding the calculations of annual leave. The Complainant calculated her total holiday entitlements as 553.92 euro

Submission Unfair Dismissals Complaint

In response to the complaint of constructive dismissal, on 30th May 2021 the Respondent received a formal complaint from the Complainant raising a number of issues in respect of her alleged treatment in the workplace.

On 1st June 2021 two named directors acknowledged receipt of the Complainant’s correspondence and stated, “Please be assured that we will investigate this thoroughly and revert to you”.

On or around 2nd June 2021 the General Manager called the Complainant to organise a meeting to address her concerns.

On 4th June 2021 the Complainant wrote to the Respondent requesting further action noting “minimal contact” in the five days since receipt of her initial complaint.

Over the subsequent weeks the Respondent carried out a confidential investigation process as per the Complainant’s wishes and interviewed a number of staff in respect of any issues noted by staff in the workplace.

On 29th June 2021 the Respondent wrote to the Complainant responding to her correspondence of 30th May 2021.

On 6th July 2021 a meeting took place between the Complainant and a manager and a director to discuss her concerns. At that meeting it was decided that a staff meeting would be held during which the working environment would be discussed. On 7th July 2021 the Complainant replied to the Respondent’s correspondence of 29th June 2021. On 9th July 2021 a staff meeting was held to address the working environment which was attended by the Complainant. No issues were raised by staff after the meeting of 9th July 2021.

On 9th August 2021 the Complainant notified the Respondent that she was resigning her employment with the Company. On 12th November 2021 the Respondent received a WRC complaint form on behalf of the Complainant.

 Legal arguments were submitted regarding the definition of a constructive dismissal under section 1 of the Act of 1977. The Respondent submitted that a written formal complaint to the directors of the Company was received; that complaint was acknowledged; the Complainant was informed that an investigation would take place; that investigation took place; the Respondent then corresponded with the Complainant addressing each issue she had raised and also raising concerns in respect of issues that had come to light during the investigation. It was agreed at the meeting on the 6th of July that a staff meeting would be held to discuss the working environment in general terms and four weeks later without further concerns raised by her the Complainant tendered her resignation. It is submitted that the Complainant has failed to show her “contractual terms were altered in such a way going to the root of the contract as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal”.

Organisation of Working Time Act 1997

Preliminary issue.

The Respondent submitted that the contravention claimed is in respect of the annual leave accrual for the leave year 1st January 2020 to 31st December 2020 (statutory leave year ending 31st March 2021). As the Complainant’s form was filed on the 5th of November 2021 the cognisable period in respect of this claim is therefore 5th May 2021 to 5th November 2021 and therefore the adjudication officer does not have jurisdiction to hear the complaint as the complaint was not lodged within the six-month period specified in section 41 of the Workplace Relations Act. In the event that it was decided that the adjudication officer has jurisdiction to consider the claim it was submitted that the Respondent was closed for a large part of 2020 and that the Complainant was on layoff. Section 19 of the 1997 Act does not provide for the accrual of annual leave where an employee is on layoff, and it is submitted that the Complainant received her full entitlement for the year 2020. They referred in particular to her final payslip dated 27th August 2021 in respect of accrued annual leave.

Following the hearing calculations were submitted by the Respondent giving a breakdown of leave due paid during 2021 and paid on termination.

Terms of Employment (Information) Act 1994

The Respondent disputes the claim that the Complainant did not receive a copy of her terms and conditions and referred to a signed and dated contract of employment. The employee handbook was left in the office for access by all staff at all times. On the specifics of the complaint that the Complainant did not receive written notice in respect of an update to her terms of employment the Complainant was not prejudiced as a result of not receiving same. The Complainant had worked for the Respondent for approximately three years and never raised any concern or grievance in respect of her contract. The Complainant received a pay rise with effect from 19th July 2021 and gave notice of her resignation on 9th August 2021, thus she had resigned from her position within three weeks of the pay rise whereas section 5 of the Act requires written notice within one month. Thus, it was contended that in tendering her resignation the requirement to notify the Complainant in writing of a change of terms was effectively made redundant.

Respondent witness evidence

Witness D described himself as a director/financial controller. He described his relationship with the Complainant as good and generally being happy at her work apart from one incident. He recalled there were some issues raised informally but nothing formal before the first letter [30th May 2021] was received. The Complainant had spoken to him pre-Christmas 2020 and previously about other members of staff, not always the person described in this decision as R. He received the letter of May 2021 in a WhatsApp message and said he was surprised when he read it because he did not think the issues were as serious as she made them out to be. They were issues that she had raised all the time. He went through each part of it, and he spoke to some staff members, and he cannot say that if he mentioned R specifically to people, but he was trying to find out if there were people excluding the Complainant and whether they were under any pressure to do so from R. The reply of those interviews is that they would not be told what to do by anyone, that was the general reaction. He took a few weeks to complete the investigation as he is based in Galway, and it took a bit of time to reply. These were not normal times due to the return after Covid. He was not involved in the meeting on the 6th or the 9th of July. Regarding the letter of resignation, he was asked whether he invited the Complainant to reconsider her decision to resign and he replied no, and the reason was the tone of the correspondence suggested that

she was going legal, and a lot of her complaints were inaccurate or untrue and she said she was going to the WRC. He gave evidence that between the 9th of July and the 9th of August nothing else was said to him by the Complainant about any issues. In response to the Complainant who said this was the first time she had spoken to him since she sent the letter and she asked how he concluded that matters were resolved, he said that he saw her one or two times between the 9th of July and the 9th of August he asked her how she was, and she replied that she was busy. Asked by the Complainant why he interviewed all members of staff and not her, he replied that he did not speak to a named member of staff because there was no point as he knew they were getting on fine, so he spoke only to the people who the Complainant said were not speaking to her. In relation to the letter of the 7th of July sent by the Complainant to the management, he was asked had he seen that letter and had he replied to it, he said that he felt that the meeting of the 6th of July had dealt with her issues and he understood there was an agreement that a general staff meeting would be held to resolve issues and he understood then that the 9th of July meeting should have addressed all the issues between staff.

Witness F is a manager since 2018. He said there were 12 fulltime and 8 part-time staff. Regarding the procedures for making a complaint, he had never used one before. His attitude was always to resolve a problem when it arose, and if not then it would go to the Financial Controller Director. He gave evidence that before Covid it was a great environment. When they went to reopen in 2020 the Complainant said she did not think they should be opening, and in a follow up she said that she would return in the second week in June. Shortly after that reopening, he could see that she was unhappy, but he only became aware of a complaint when the WhatsApp message was sent. He said there were issues but there are always issues with people. He clarified that the premises was closed on Christmas Eve 2020 and had reopened first for a deep clean and then on the 4th of June. Referring to the meeting on the 6th of July, that was the day that he found the Complainant upset. There had been an incident and the two of them sat down to discuss the situation with another Director. He described her as being upset at the meeting and he said that they would have the meeting with staff to resolve issues on the 9th July and this was agreed. He had told the Complainant if she had problems, she should come to him first and he understood from what he saw after the meeting on July 9th that things were improving.  Asked about the location of the meeting on the 6th of July, he said that this was a secure room which was completely separate from other people.

Constructive Dismissal Complaint

As advised to the parties at the hearing, this was not a case where a decision would be made about the allegation of bullying and deciding for or against that complaint. By way of observation the premises was closed for a long period in 2021 due to Covid and as soon as the Complainant decided to return to work, she also made a formal complaint of bullying. There is agreement between the Complainant and witness D that she did complaint to him in 2020 before the Covid closure. The trigger for her decision to formalise a complaint was almost certainly the incident on 25 May 2021 when she was at the premises as a customer and described an altercation with the employee who was the main source of her grievances.  Prior to the written complaint there does not appear to have been any reference to bullying but the Respondent accepted that the written complaint was regarded as one of bullying. Where the Respondent fell into error in addressing the written complaint was not in the timeline, which was very prompt, but in not meeting the Complainant about her statement of complaint. No written complaint could adequately capture all of the issues or nuance around issues. In any event an investigation must include dialogue and input from the Complainant and not solely those who the employer choses to interview. And then only interviewing those who the Complainant felt were excluding or ignoring her and then taking no notes of those meetings and then denying the Complainant the opportunity to comment on the notes or statements of others-essentially no right of reply. And finally, to issue a response to a complaint based on those unrecorded interviews with no right of reply not only dismissing her own complaint but also making accusations against the Complainant without hearing her on those charges either. There is no obvious justifiable reason why and employer or the Respondent in this case would fail to provide the aggrieved employee with a copy of the policy on such complaints/investigations until they had concluded their own one-sided inquiries. The conduct of the inquiry by the Respondent does not come near the standard of inquiry required for a grievance, let alone an allegation of bullying. Such was the extent of the breach of fair procedures that had the Complainant left on receipt of the letter of 29 June 2021 she would have been justified in contending that her position in the employment was compromised to the extent that her trust in that contract was irretrievably broken rendering the contract effectively inoperable as a mutual agreement. However, and this is where the analysis becomes more complex-the Complainant remained in the employment for a further five weeks before giving her notice and resigning in mid-August. The meeting of July 6th was convened, and she attended and was visibly agitated according to the testimony of the Respondent witness F. But there is sufficient common ground to conclude that the Complainant did agree to the staff meeting in an effort to resolve the situation between her and other staff. At that meeting it seems clear that the management did express the need for everyone to get along and the other employee whom she identified as the main source of her grievances appears to have made an effort to ‘bury the hatchet’ but the Complainant did not feel able to do so. Nonetheless the evidence of the Complainant on what if anything had occurred within the workplace between the date of the staff meeting and her resignation did not provide anything so clear which suggested her actual problems were continuing or were repeated to an extent that they would have formed a basis for a valid complaint against the Respondent of Constructive Dismissal. Where the Complainant does succeed in her case against the Respondent is that although they did make an effort to both speak to the Complainant on 6 July and held the staff meeting on July 9th, they did not respond to her letter of July 7th following the meeting on July 6th.  In that letter the Complainant was clearly still using the language of bullying, she criticised the meeting of July 6th and the letter of June 29th. And crucially she spoke of a job which had become intolerable and distressing. It is not a sufficient response to that letter that the Respondent considered matters resolved by either the meeting the day before when the Complainant was clearly saying they were not or the meeting a couple of days later when that conclusion was not verified with the Complainant. The absence of a properly conducted response to the initial complaint of bullying in the first place was compounded by the lack of any response to the letter of July 7th, 2021. In the circumstances, the absence of responses and/or the inadequacy of the responses to complaints of bullying was sufficient to allow the Complainant to conclude, not unreasonably, that the Respondent had fundamentally breached the relationship of trust, confidence and fairness all of which must exist in an employment relationship on both sides. This said the letter of July 7th does refer to taking matters to the WRC and therefore the Complainant had by then an awareness of her rights and the procedures open to her to resolve her concerns but chose not to follow those avenues prior to her resignation. This is a factor in determining redress along with the Complainants evidence which lacked any detail of substantial efforts to obtain alternative employment prior to issues which arose requiring surgery post the resignation and which prevented her from looking for work for a period.  

Compensation is the only feasible remedy where the former employee resigned due to fundamental breaches in the employment relationship. Three weeks compensation is considered appropriate in all the circumstances.

Terms of Employment Information Act 1994

I am satisfied that the Complainant received her initial statement of terms in writing. I am also satisfied that she looked for a revised statement when her duties were changed, and this was not provided. It is on the basis of this aspect of the complaint that she is to receive compensation amounting to one week’s wages.

Organisation of Working Time Act

On examining the calculations provided by the parties, I find no basis for concluding that there are any payments in respect of holiday pay due to the Complainant.

CA-00047012-001 Unfair Dismissals Act 1977

The complaint brought by the Complainant under this legislation is well founded. The Respondent is to pay the Complainant 720 euro in compensation.

CA-00047012-003 Organisation of Working Time Act 1997

The Complaint brought by the Complainant under this legislation is not well founded.

CA-00047012-004 Terms of Employment Information Act

The Complaint brought by the Complainant under this legislation is well founded. The Respondent is to pay the Complainant 240 euro in compensation.

Constructive Dismissal/Revised Terms of Employment/Holiday Pay on Termination