Complainant

Respondent

Parties

Sebastiao  Colaco

Prorins Limited

Representatives

  The claimant represented himself

Gavin Cumiskey  Peninsula Group Limited

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-00031545-001

14/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00031572-001

15/10/2019

The claimant was in the employment of Gala , Strandhill  from the 13th.July 2013 as a Weekend Supervisor .The shop was subject to a number of transfer of undertakings during his 6+ years in employment .He submitted that he was constructively dismissed on the 14th.October 2019 owing to the conduct of his employer “ or others at work”. The respondent categorically denied the complaint and further contended that there was no jurisdiction to investigate the complaint as it had been prelodged with the WRC prior to the claimant’s resignation.

The claimant submitted as follows in his complaint form :

“ I am Sebastiao Colaco , When i started to work with Spar 6year a go 2013 Aug 13th , i had no problem and was permanent Staff i was hard working , enjoyed serving Customer and the customer and the owner were happy with my work . The problem started in 2016 when (Proloynil Banerjee ) had take then ownership of the shop under care of (Joe) which i dint know i thought it was (Bryan Tuffy ) the owner as he took my interview first saying i will be given Assistant Manager job and that i will take care of the shop with Manger Proloynil which I did sincerely but was not given that post ..Then after one month i realised that (joe ) is the owner ..This way under the name of (Joe and Bryan Tuffy ) the Manager Proloynil Banerjee took Advantage in order to get the lease of the shop. Due to dismissal tactic played against me by Proloynil Banerjee (Who was a Manager three

years ago and now present as new Owner ) of Gala grocery shop in Strandhill since 16th Sep 2019 this year...at that time i was forced to resign which i didn’t do as fear of losing my Job and i did know what to do ? Now since he is back the same tactic has been played in the first meeting since he as the owner was just talking about figure and reducing my hours to 20 hours again fear this time ,...i am full time employee working for 35 hours per week.

i am working in this place for 6 years since 2013 in which i have saw three Owner change over the first owner whom i worked was Spar 2013 owner (Gerry / Nula)and changed to Gala in 2016 to 2019 Second Owner (Joe)and Present this year 16th Sep 2019 Third new Joint Ownership (Proloynil Banerjee and Terins Jose. )

 My employment was transfer from one Employer to the next Employer. New contract was given to me on 16th Sep 2019 but i have not signed it yet as I can’t put up with all the suffering i went through Stress , Bullying and personal injury when Proloynil Banerjee played against me when he was a manger in 2016 and the owner was Joe, This time at present since 16th Sep 2019 I decided to not to work and resign instead for (constructive Dismissal , bullying and Personal injury) This happened two years ago 2016. Two years ago i was bullied , hours cut just to 20 hours some time just one day a week and suffered personal injury i dint had a clue how to ask for help . Abuse as follow :- Bullying time and Again . Picking for minor silly faults when the floor is clean the manager said its not clean , bowls not arranged in the Deli . I dint pass any heed i did all that he said . Addition work load then the other staff i have a proof or harassment , unfair treatment . Allegation on me again that i have served Customer Raw Chicken made up along with other staff , then later on the staff confessed that it was”.

The claimant submitted that he had been the subject of unfair treatment , harassment and false allegations over a prolonged period and submitted that nothing was done by the respondent who smiled and walked away. He asserted that his treatment severely affected his mental health and set out examples of the conflicts that had arisen in the workplace.

The claimant submitted that Prorins Ltd t/a Gala  took over the shop on the 16th.Sept. 2019.The claimant  submitted that  he was presented with a contract for 20 hours per week having been employed on 35 hours per week. The claimant submitted that he was demoted from his Supervisor’s Post to part time shop assistant , that he was required to commence on  6 months probation and that he may be transferred to other shops in Cliffoney or Strandhill. The claimant submitted that he was put under pressure to sign this new contract but he rejected saying “ I am a full time employee and that my employment is transfer of employment and that I cant accept 20 hours and the next thing I was handed rota the first week I was offered 16 hour”s. He submitted that he subsequently received threatening phone calls from the respondent and former owners of the shop.

The claimant asserted that he “ waited for one month from 12th.Sept.-14th.Oct2019 til the day I resign because of respondent conduct”.The claimant asserted that his letter of resignation was given to the respondent’s business partner on the 14th.Oct. 2019 and stated that he filed the complaint to the WRC at 11.00a.m. on the 14th.October and submitted the second complaint after 2.00p.m. on the 15th.October.

The claimant submitted into evidence a medical certificate covering the period from the 16th.Sep. 2019 – 13th.Oct. 2019.

The claimant stated in his direct sworn  evidence that he received harassment calls about his rejection of the offer of the revised terms – he said he had his letter of resignation ready as he knew he would be bullied again. He submitted that the respondent was to meet with him but he got no call to a meeting .He asserted that he was pressurised to sign a new contract with reduced hours – he refused to do so as he was reclassified as a new employee – the claimant stated that he never returned to work as he had been bullied in this employment since 2016.The claimant said he was given a contract in 2013 and he recalled signing it. He stated that he was receiving harassment calls from Mr.Tuffy and Mr.Banerjee -when asked if he had made a complaint about these allegations the claimant replied that he had his resignation letter ready as he knew he would be bullied again. The claimant proceeded to go off sick from the 16th.Sept. – 13th.October.The claimant stated that he was ready to negotiate on the 13th.October – Mr.Banerjee had said he would have a meeting with him but there was no contact from him. The claimant compiled a grievance letter on the 19th.September expecting a call to resolve the issues but got no call. He submitted his grievance letter to the respondent on the 21st.October having resigned on the 14th.October.The claimant was hoping for negotiations. The claimant referred to a letter from the respondent dated the 24th.October accepting his resignation – he said he received this letter on the 1st.November .The claimant categorically denied that he gave the letter of resignation to the respondent on the 21st.October – he asserted that he gave the letter to the respondent on the morning of the 14th.October 2019 and thereafter referred to complaints to the WRC later on  the 14th.October and after 2.00p.m. on the 15th.October.The claimant elaborated on his allegations of bullying – when he first complained about this to Joe Queenan on the 4th.July 2017 , Mr.Queenan resolved the matter.The claimant stated that he subsequently received threatening calls from Brian Tuffy.

Under cross examination ,   it was put to the claimant that the contracts were drawn up for all staff and that it was a draft document. It was also put to the claimant that there was no contract presented indicating that the claimant was a Supervisor. The claimant was referred to the whats app messages sent to him by the respondent  after the meeting on the 16th.Sept where the respondent stated that he would commence on 3 x 8 hr shifts – with a view to slowly increasing the hours “ once the business settles down”. On the 19th.Sept 2019 when the claimant commenced sick leave the respondent’s reply was “Ok Sabi . Get well soon”. It was put to the claimant that he had given no indication of how long he would be off. It was put to the claimant that the previous rosters  were illegal and in breach of the Organisation of Working Time Act 1977 as they did not provide for an 11 hour break  and that the second roster had scheduled him for additional hours.

When asked if he accepted that he did not present his grievance until the 20/21 October , the claimant replied that his resignation letter was ready on the 19th.Sep.The claimant asserted that Mr.Banerjee had changed his duties from 5 days to weekend work .It was put to the claimant that the employer was now offering a legal rota and he replied that he was being treated as a new employee .It was put to the claimant that it was normal practise not to be contacted by an employer when a worker is out sick. The claimant did not send in the sick note until the 22nd.Sept. – he asserted this was because he was harassed and he could not sleep or talk. The claimant was questioned as to why he did not present his grievance letter on the 19th.Sepember – he replied he had not completed it .It was contended by the respondent’s representative that the letter of resignation was not presented to the respondent until the 21st.October 2019.The claimant was adamant that he presented his resignation letter to Terence Jones in the shop on the 14th.October and submitted the grievance letter at the 21st.October meeting .He indicated that his hope was that the respondent would call him and resolve matters and he would then withdraw his complaint from the WRC.

In summing up the claimant asserted that he was forced to resign because of the attitude of the respondent over a 6 year period from 2013 -2019.He was hardworking and stated he had no problem with the previous manager. He asserted that the respondent knew how stressed he was – he had been shouted at and was depressed – he had submitted a doctor’s report confirming that he had to go for counselling and this was a forced resignation – he was being forced to sign a contract which led to his forced resignation.

The respondent submitted as follows:

Background

1. Prorins Ltd t/a Gala (hereinafter referred to as the Respondent) operates as a Convenience Store as part of the Gala Group and is based in Sligo Town.

2. Sebastiao Colcao (hereinafter referred to as the Claimant) was employed as a part-time shopassistant at the Respondents shop.

3. The Claimant has made 2 claims for Unfair Dismissal by way of Constructive Dismissal under the

following reference numbers, CA-00031545 and CA-00031572. Both claims seem to be identical.

4. The Respondent categorically denies all allegations.

CA-00031572/CA-00031545

5. Owing to a transfer of undertakings a meeting with all staff members was held on the 12th 2019 and again on the 16th September 2019.

6. This was done to give all the staff an overview of the position of the business, to open a series of discussions on what may be happening and to get initial staff feedback on what was outlined.

7. The business was not performing as well as could have been hoped.

8. The business is subject to seasonal changes in demand levels.

9. Naturally, there were going to be some changes in order to return the business to the levels of

profitability that were required to sustain and secure employment within the business.

10. A draft contract was supplied at these meetings. It should be noted that this was a draft that at least looked to guarantee minimum hours for all staff. But as the respondent’s letter of the 24th October states it was a draft.

11. However, there was a primary issue to be addressed with the claimant’s hours.

12. The claimant normally worked over the weekend, operating a Friday shift of 3.00pm to 10.00pm and a shift on Saturday and Sunday of 8.00am of 10.00pm. This meant that, prior to the TUPE transfer, the Claimant was working 3 shifts per weekend with a maximum rest period of 10 hours.

This is shown in the shift rotas.

13. These shifts represented at least a breach of S.11 of the Organisation of Working Time Act,

specifically preventing the employee getting their appropriate rest periods between shifts. S. 11

states

‘11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in

each period of 24 hours during which he or she works for his or her employer.’

14. There may have been some concern, though not overtly expressed about the application of S.12, dealing with taking of breaks.

15. This presented a potential threat to the health of the employee and therefore presented a danger to the business.

16. For these and other reasons listed above it was imperative that these be addressed.

17. The claimant was scheduled for 20 hours that first week as it gave the company some time to try and assess and sort the situation.

18. It should be noted that this was not unique to the claimant, similar changes were instituted across the board.

19. It is interesting to observe that the claimant was scheduled to work over 30 hours on his second week.

20. Unfortunately, the claimant never attended for work on any of these days and was certified sick from the 16th September.

21. Several attempts were made by the business to contact the claimant to discuss the case. These calls were made by the manager of the shop as it was felt that attempts by the owner may have caused a level of distress to the claimant.

22. None of these calls were returned and the claimant did not engage with the company.

23. On the 21st October the claimant handed in a resignation note and a note looking for a grievance to be investigated.

24. This left the company in an invidious position; how would it respond and deal with these issues if the claimant had resigned.

25. But fundamentally, it should also be pointed out that the claimant had lodged a claim with the

WRC on the 15th October claiming to have been constructively dismissed.

26. This clearly gave the new company no opportunity to address the claimant’s issues and to explore any potential solutions.

27. He had clearly decided to resign and any documents after the 15th were clearly a veneer to show some level of compliance with the law.

28. All of the claimant’s issues are at least three years old and relate to a different employer.

29. If the claimant was determined to take a case it should have been against the previous employer, as there are allegations made that could and arguably should have been sorted by the then employer.

Submissions

30. It is the respondent’s submission that the claimant lodged his claim CA-00031545 on the 14th

October at 11.35 a.m. and CA-00031572 on the 15th October at 2.15 p.m. with the WRC.

31. The claimant only provided his resignation and formal grievance letters to the respondent on the 21st October.

32. Under updated Section 8 (2) of the Unfair Dismissals Act it states:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing

(containing such particulars (if any) as may be specified in regulations under subsection

(17) of section 41 of the Act of 2015) to the Director General

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant

dismissal as the adjudication officer considers appropriate, in circumstances where

the adjudication officer is satisfied that the giving of the notice within the period

referred to in paragraph (a) was prevented due to reasonable cause, and a copy of

the notice shall be given by the Director General to the employer concerned as soon

as may be after the receipt of the notice by the Director General.

33. It is clear from Caragh Neeson and John O’Rourke & Sean O’Rourke Chartered Accountants

(UD2049/2011) that a claimant cannot pre-lodge a claim. In this case the Tribunal examined the

meaning in Section 8 (2) and found “However, the Tribunal, focusing on the insertion of the words

“beginning on” and giving these their natural and ordinary meaning, interprets the amendment to

mean that a claim must be lodged after the dismissal. Thus, it finds that the claim, having been

lodged prior to the dismissal, was not validly before the Tribunal.”

34. The Tribunal continued: “Furthermore, were the Tribunal to look with leniency on premature

claims the system could well become clogged up with claims based on the expectation that a

dismissal might occur sometime in the future which could be later withdrawn.”

35. The facts of this case clearly show that the claimant pre-lodged his claim for constructive

dismissal.

36. While the respondent did later accept the end date of the 14th October, at the time of lodgement of the claim papers none of these matters had been presented, discussed or agreed with the respondent. Therefore, the claim is pre-lodged.

37. It is respectfully submitted that the Adjudication Officer should decline jurisdiction to hear this

claim under the Unfair Dismissal Act.

38. In the alternate, whereby the Adjudication Officer deems that there is jurisdiction for the matter to be ruled on, the Respondent wishes to make further submissions.

39. The Respondent refers to Section 1 of the Unfair Dismissals Act, which states;

“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.”

40. The Respondent refers to Debbie Kearns v Silverfern Properties Ltd. (UD2428/2010) in which

it was held that “In order to succeed in a claim of constructive dismissal a claimant must show,

that either their 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.”

41. It is submitted in the present case that the Claimant tendered his resignation as he was dissatisfied with the Rota change which the Respondent wished to implement. As stated above this change was factoring in a number of matters, including the Respondents’ responsibility to the Claimant under S.11 of the Organisation of Working Time Act. The old rota that the previous employer had been utilising was not in compliance with the law and exposed the Claimant to excessive hours without necessary rest and could have compromised his health therefore the Respondent had a duty of care to the Claimant to ensure that these hours were in accordance with the relevant legislation.

42. Furthermore, as seen in the letter of the 24th October 2019 the contract that was offered was a draft contract and the hours outlined in it were minimum hours therefore the Claimant was in a position whereby he would have been in a position to have the same level of hours spread throughout the week as he previously had.

43. Following from this the case of Nicola Coffey v. Connect Family resource Centre ltd. (UD

1126/2014) held that “[t]he bar for constructive dismissal is very high.” In A General Operative

v. A Religious Society (ADJ-00002814) it was held by the Workplace Relations Commission that

in claims of constructive dismissal:

“The critical issue is the behaviour of the employer, although the employee’s behaviour must

also be considered. Generally, the criterion regarding the behaviuor of the employer is taken

to mean something that is so intolerable as to justify the complainant’s resignation, and

something that represents a repudiation of the contract of employment…In effect the

question is whether it was reasonable for the employee to terminate the contract on the

basis of the employer’s behaviour.”

44. The Respondent would submit that their behaviour was the opposite of this and that they wereacting purely within the law and with the best interests of the Claimant at mind when they made changes to the Rota and further they would state that these changes did not represent any

repudiation of the contract therefore the claimant has no legal basis to terminate his contract.

45. The Respondent wishes to further rely on the case of Ruffley v. The Board of Management of St

Anne’s School 2017] IESC 33 it was held by Charleton J.:

“Correction and instruction are necessary in the functioning of any workplace and these

are required to avoid accidents and to ensure that productive work is engaged in. It may be

necessary to point out faults. It may be necessary to bring home a point by requesting

engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to

instill a work ethic or to save a job or a career by an early intervention. Bullying is not

about being tough on employees. Appropriate interventions may not be pleasant and must

simply be taken in the right spirit.”

46. Aa further case that is relied upon is Higgins v Donnolly Mirrors Ltd. (UD 104/1979) (taken

from Mary Redmond, Dismissal Law in Ireland, 2nd Edition) the Tribunal rejected the Claimant’s

claim for constructive dismissal as she had failed to discharge the heavy onus of proof she bore.

Additionally, in the case of Conway v Ulster Bank Ltd. (UD 474/1981) (also taken from Mary

Redmond, Dismissal Law in Ireland, 2nd Edition), the Tribunal found that the Claimant had not

acted reasonably in resigning without first having “substantially utilised the grievance procedure

to attempt to remedy her complaints.”

47. It is clear for the facts of this case that the Claimant did not engage in the proper Grievance

process. The Claimant pre-lodged his claim with the WRC and then resigned and entered a

Grievance.

48. The Respondent would further rely upon Donegan v Co. Limerick VEC (UD828/2011) where

the Tribunal held that “the respondent’s conduct was not so unfair or damaging to the claimant’s

rights and entitlements that she had no option but to resign from her position.”

49. In the case of Ian Flaherty v College Freight Ltd. [2009] 6 JIEC 2901, in dismissing the claim

stated that they “accepted that there was a less than harmonious working relationship between the

claimant and DM but did not accept that the level of that relationship was such that the claimant

could show the conduct of the respondent was so unreasonable so as to justify a claim of

constructive dismissal.”

50. The case of Mc Cormack v Dunnes Stores UD14 21/2008 illustrates the level of responsibility on theEmployee to ensure they exhaust the internal process:

.“the notion places a high burden of proof on the employee to demonstrate that he or she acted

reasonably and had exhausted all internal procedures or otherwise in an attempt to resolve her

grievance with his/her employer. The employee would need to demonstrate the employer’s conduct

was so unreasonable as to

make the continuation of employment with the particular employer intolerable.”

51. In Office and Industrial Cleaners Ltd. and Ms. Nicole Connolly UD/19/198 the Labour Court held that

“In constructive dismissal cases, the Court must examine the conduct of both parties. In normal

circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures llaid down in the contract of employment before resigning.”

52. The Respondent would state that the Claimant has not acted reasonably in the circumstances and through his resignation left the Respondent in a very invidious position.

53. On all the above basis the Respondent would submit that the Claimant should not succeed in his

claim.

Mitigation of loss

54. Should the Adjudication Officer find that the Claimant was constructively dismissed, which is

denied, it is noted at the time of lodging his claim, the Claimant had not taken up any new

employment nor has he provided any evidence of any efforts to obtain new employment.

55. The Claimant lodged his claims on the on the 14th & 15th October 2019 and is obliged as per

Section 7(2)(c) of the Act to mitigate his loss.

56. The Respondent refers to the decision of Coad v Eurobase (UD1138/2013) where the Tribunal

noted, “In calculating the level of compensation the Tribunal took into consideration the efforts of

the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out

by the Tribunal is Sheehan v Continental Administration Cp. Ltd. (UD858/1999) that a claimant

who finds himself out of work should employ a reasonable amount of time each weekday in seeking

work. It is not enough to infirm agencies that you are available for work nor merely to post an

application to various companies seeking work…the time that a claimant finds on his hands is not

his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his

loss.”

57. Notwithstanding the forgoing, the respondent also refers to the decision of Mlynarski -v- Pianos

Plus (UD 1294/2008)  where the Claimant was awarded no compensation. The Tribunal held that,

i

“…the dismissal of the claimant was procedurally unfair and therefore the dismissal was an

unfair dismissal… The Tribunal determines that the claimant was unfairly dismissed … and

finds that the claimant’s contribution to his own dismissal is such that the appropriate

remedy is an award of compensation in a nil sum.”

58. The Claimant has failed to disclose any further evidence of seeking alternative employment.

59. The Respondent reserves the right to make the relevant enquiries at the hearing of the matter.

60. The Respondent reserves the right to submit additional documentation and information at the

hearing.

Conclusion

61. It is the position of the Respondent that:

(i) The Claimant pre-lodged his claim and the WRC does not have jurisdiction to hear the case

(ii) In the alternative it is submitted that the Claimant does meet the threshold for a Constructive Dismissal

The respondent’s representative disputed that the claimant made efforts to mitigate his loss and asserted that the claimant sat on his hands “ waiting for a payout”.

In his direct evidence Mr.Banergee confirmed that he took over the shop on the 16th.September 2019 – he stated he had a number of meetings and had drafted a contract for the claimant – he wanted to rectify a rota for the claimant starting with a floor of hours and building up further hours. He asserted that  when the claimant raised his grievance about hours he adjusted his hours on the second rota .When the claimant went off sick on the 19th.Sept. he told him to take care and expected him back at work. He stated that his partner Terence tried to contact him to get him back to work .He advised that when they met the claimant on the 21st.October , they were expecting the claimant back to work – he asserted that the claimant handed in 2 letters and he responded that they would be discussed by management.

Under cross examination , when the matter of reduction of the claimant’s hours were put by the claimant – who  asserted to Mr.Banergee that the contract he wanted him to sign was the contract for a new employee and the claimant was  adamant that he asked the respondent not to cut his hours  and to recognise his previous contract – the respondent replied that they were making changes to allow for the 11hr break under the Organisation of Working Time Act 1997. The respondent denied the claimant’s assertion that he gave the resignation letter to Terence on the 14th.Oct.The claimant put it to the respondent that it was clear from the contract he wanted him to sign that his hours were cut – the respondent asserted that the contract was a draft  agreement and the claimant replied that it changed his status as a full time employee. When the claimant asserted that he was unhappy with the hours on offer , the respondent replied we gave you the hours you were looking for. The claimant stated that he had sought a grievance meeting and the respondent had failed to honour his commitment to have a further meeting.

When asked by the adjudicator why the contract was not titled a “draft” contract , the respondent asserted that it was a matter for the claimant to provide evidence of his former terms and conditions of employment.

The respondent stated that the claimant gave him the resignation letter on the 21st.October , he also gave him the grievance letter – he referred the documents to his solicitor as he could n’t deal with them while working at the till.

The respondent’s partner Mr.Terence Jose  stated in his direct evidence that the claimant could not have given him his letter of resignation on the 14th.October as he was working in the Cliffoney shop that day and that the rota for that day would confirm that.

He undertook to forward the rota to the WRC.

In summing up the respondent’s representative  asserted that this was a prelodged claim ; the law placed a very high threshold that had to be met in  the matter of constructive dismissal ; the initial rota was setting a min number of hours and the second rota increased the  hours to 35; the respondent’s witnesses confirmed that the letter of resignation was not received until the 21st.Oct. 2019 ; the claimant had accepted that he handed the grievance letter to the respondent on the 21st.October and not the 14th.October . It was submitted that the claimant had acted unreasonably and that the claimant had made no effort to mitigate his loss; there were opportunities for people to access paid employment and he surmised it was strange that the claimant had not got work and had made little or no effort to do so.

I have reviewed the evidence presented by the parties and noted their respective polarised positions on the matter of when the claimant furnished the respondent with his letter of resignation.

The claimant asserts that he submitted his resignation to Mr. Terence Jose in the Strandhill Shop on the 14th.October 2019 and thereafter submitted his complaint of unfair dismissal to the WRC which was received by the WRC on the 15th.October 2019.The claimant categorically asserted that  the complaint was lodged with the WRC  after he tendered his letter of resignation to the Mr.Jose

The respondent submitted that the claimant ‘s complaint was prelodged and accordingly lacked jurisdiction as the complaint was submitted  to the   WRC  some 6 days before  the letter of resignation  was furnished to the respondent at a meeting on the 21st.October 2019. While it was acknowledged that the date of the letter of resignation was the 14th.October 2019 , it was contended that the first knowledge of the resignation was during the meeting on the 21st.October when it was handed over by the claimant along with his letter of the 19th.September , setting out his grievances with the new roster arrangements. In support of this position , the respondent submitted rosters for  the Strandhill Shop – it was argued that the rosters demonstrated that Mr.  Jose could not have been in the Strandhill Shop on the 14th.October 2019 as he was assigned that day to the Cliffoney Shop. The claimant disputes the authenticity of the roster and argues that it was false as it was handwritten with no date or month on it – unlike the computerised printouts which allegedly were the norm for the enterprise. He argues that this rota “ was hand made after the on line hearing in November 2021.”In support of his position , the claimant submitted a copy of a rota with a preprinted date on it. In their penultimate submission , the respondent submitted a screenshot of the rota of the 11th.October sent to a member of staff at the Strandhill  Shop.

The claimant’s letter of resignation dated the 14th.October 2019 states as follows :

Resignation Letter Due to Stress

Dear Mr.Proloynil and Terins ,

After  much consideration , I regretfully submit my resignation – effective 14th.October 2019.I wish I dint have to leave this company , but the stress has negatively affected my health and family life.

It has been a pleasure working for Gala Strandhill , I wish you and the company the Best of succession in the future.”

The respondent submitted the following letter  dated the 24th.October 2019 into evidence:

“Dear Sebastion

I refer to your letter dated 19th.Sept. which you handed to me at our meeting of the 21st.October.

At no stage were you ever informed that your hours of work were being reduced to 20 hours per week. At no time did we tell you that you could leave the job if you were not happy .It is incorrect for you to state otherwise.

You have not attended work since Prorins Ltd commenced trading on the 16th.September 2019.You were given a draft contract of employment for review on the 16th.September but that contract has not been signed or returned .

I also acknowledge receipt of your resignation letter dated 14th.October 2019.You gave that letter to me at our meeting on the 21st.October.I note , with regret , your decision to resign your position with effect from the 14th.October 2019. Both Terins and I wish you the very best for the future. The respondent submitted a copy of the following message to his Solicitor Mark dated the 22nd.October 2019 which stated :

Saby dropped this to my office  and wanted me to sign and accept this .. which I didn’t ..instead I wrote received to be discussed with the management.I need to discuss with you and give him a reply disagreeing to the points he said.

Can you pls help me with this  .We can discuss on Wednesday when we meet .. please help me draft a letter in its reply”.

The respondent submitted that this letter was evidence that the claimant submitted his letter of resignation on the 21st.October 2019 as opposed to the 14th.October 2019 as alleged by the claimant.

Following the hearing numerous submissions were made by both parties on the matter of the rotas submitted by the respondent as evidence that Mr.T Jose was not in attendance at the Strandhill Shop on the 14th.October 2019 as he was working in Cliffoney on that date. The respondent was adamant that the documentation was reliable and authentic while the claimant asserted that the rotas were compiled after the hearing of the matter by the respondent and that they were entirely false.

In the claimant’s final post hearing submission received by the WRC on the 4th.March 2020  , the claimant asserts as follows :

“The Rota which Respondent representative Mr. Gavin (litigation Consultant ) saying 11th

Oct 2019 has provided is completely different from what was submitted by Respondent (

Protin ltd ) by Prolynil Benerjee and Terins Jones ). This Rota has not mention my

Claimant Hours.

How can One Staff get different Rota and other Staff get different Rota . Completely false

and lie this is done after taking Oath lying . And this Rota is done after the hearing online in

Nov 2021 to cover them self. They have proof to show 11th Oct but they don't have proof of

Rota which is submitted above .

So this is Clear that Rota manipulation has done that's how I Claimant was forced to Resign

and bullied since 2016 at work when Proloynil Benrjee was manager and now company

partner Respondent ( Prorins ltd) with Terins .... and forcing me to sign Employment

Agreement which is against Law changing my terms and condition being full time employee

was made to sign as New employee with 20 hours min instead was given 16 hours and also

got treat Call to not to report my Case to WRC .

Above Rota submitted by Respondent and below Rota submitted by Gavin (litigation

Consultant ) are Two different Rota with my Claimant job hours are shown different on

both the Rota” .

The respondent representative replied as follows :

“Please find attached a copy of a Rota which was used for Cliffoney. It was not as formalised as

Strandhill but Terins Jose was  putting in place the processes at the time. I have also attached

copies of the WhatsApp messages picture on the phone of Terins Jose which were sent out on the

14th October to a number of the staff.

Whilst they are not as clear as the Strandhill processes it must be appreciated that the Respondent company had only take over the business a matter of weeks at this stage and were putting into action their own processes. The Respondent would state that on the balance of probabilities the evidence of Terins Jose has more cogency that the Claimant’s”.

I have reviewed the voluminous submissions of the parties and do not accept that the rotas submitted by the respondent provide definitive evidence of Mr.Jose having worked at the Cliffoney Store on the 14th.Oct. 2019 .The rosters presented are unclear and were subject to a number of amendments some of which are illegible. I have  considered the entirety of the direct evidence of the parties and note that that there were inconsistencies on both sides. Notwithstanding this I find I prefer the evidence of the claimant based on  the claimant’s letter of resignation dated the 14th.October 2019 where he resigns with immediate effect and on the day following the expiry  of his sick leave and the respondent’s acknowledgement of the resignation in their letter of the 24th.October 2019 of the claimant’s decision “ to resign your position with effect from the 14th.October 2019”. In the respondent’s own submission it is advanced that the respondent “did later accept the end date of the 14th.Octber”.  Additionally I am taking account of   the fact that  2 complaints were received from the claimant on the 14th. and 15th.October 2019 by the WRC . I   have concluded on the balance of probability that the claimant resigned before he submitted his complaint to the WRC and consequently do not accept the respondent’s argument that the complaint was prelodged and that I  had no jurisdiction to investigate same.

The claimant was presented with a contract for signing on the 16th.Sept. 2019 by the respondent – the claimant  asserted that this was discussed with the respondent at length at 2 meetings on the 12th and 16th.Sept. and he raised grievances regarding being demoted from weekend Supervisor , reduced to part time status from a position of working full time hours to now having a commitment of 20 hours per  week and being  treated as a new employee with no recognition of his previous service of almost 7 years. , There was no reference in the document to it being the subject of negotiation and agreement or indeed to it being a draft document. It was not disputed that prior to the taking over of the business by the respondent , the claimant worked full time hours – according to the claimant he was promoted to weekend Supervisor in 2016 – this was disputed by the respondent .Neither the claimant nor the respondent were in a position  to submit evidence of the claimant’s former contract. The respondent submitted that the 20 hours offered to the claimant was a starting position until the business settled down and submitted that they were compelled to change rosters to comply with the provision  the Organisation of working time Act 1997.In his submissions the claimant referred to a history of poor relations with the respondent – he asserted that the respondent had been his manager in 2017 and had reduced his hours at that time to 20 hours per week.He submitted into evidence certificates from his GP between 2016 and 2020 which referenced workplace stress , bullying and psychological torture  .

In accordance with Section 1 of the 1977 Act , a constructive dismissal can be defined as

“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…”.

Claims are based on 2 tests , the contract test and the reasonableness test.The contract test was described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp (1978) as follows :

“ If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment  , or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract , then the employee is entitled to treat himself discharged from any further performance”.

I am satisfied that in the instant case the conduct of the respondent indicates that he no longer intended to be bound by one or more of its essential terms  - in this case , the status of his post , the working hours and the recognition of former service of up to 7 years. Such conduct by the   respondent amounted to a  repudiatory breach of contract .The respondent was unable to advance any compelling justification for failing to issue the claimant with the contract in DRAFT form. While it could be argued that failing to exhaust the company’s grievance procedure is fatal to a complaint of constructive dismissal , I am taking into account the following circumstances – the claimant would be expected to exhaust the grievance procedure provisions of a contract which was the subject of a repudiatory breach by the respondent ; there was a backdrop of fractured relations between the parties ; the claimant had a history of mental health challenges ; the claimant went sick for 3 weeks before tendering his resignation ; it was open to the respondent to engage with the claimant with a view to addressing the grievances aired at the September meetings and the respondent did not do so. Exhausting procedures is not a universally applicable rule  as emerged in Allen v Independent Newspapers [2002]E.L.R.84;May v Moog Ltd. [2002]E.L.R. 261 and Monaghan v \sherry Bros [2003]E.L.R. 293.In all of the circumstances I  am upholding the complaint of constructive dismissal.

I have considered the respondent’s assertion that the claimant did little to mitigate his loss over the ensuing period  and have had regard to the claimant’s documentation on his efforts to source alternative employment .I accept that there is some basis for the respondent’s contentions in this regard and noted that there are gaps in the chronology of job applications made and some predate the dismissal.

Taking all of the foregoing into account , I  consider the sum of €10,000 compensation to be just and equitable in the context of this dispute and require the respondent to pay the claimant €10,000 compensation.

Repudiatory Breach of Contract , Constructive Dismissal, Pre lodgement of complaint , jurisdiction