Complainant

Respondent

Parties

Gerry  Williams

J.a.j. Supermarkets Limited Mahon's Spar Supermarket

Representatives

Trevor Collins Kilfeather & Company

Lisa Conroy Peninsula Group Limited

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-00034025-001

28/01/2020

The complainant was employed as a senior butcher with the supermarket. He commenced employment on the 5th of May 1991. The business was a family run supermarket. In recent years the business encountered very difficult trading conditions arising from new market entrants and from changing consumer preferences. The meat and deli counter in recent years began to make a loss.

The business was part of a franchise who supported the shop to change and modernise. The owners stated that at no time did they ever want the complainant to leave the shop. He was a valued member of staff. However, he did find it very difficult to change and accept suggestions about new ways to present and sell meat products based on changing consumer preferences and needs.

At the heart of this dispute is the cleaning of the butcher’s bandsaw and block. The complainant maintained that it required a couple of hours to clean properly, while the employer stated what this task could be completed in 30 minutes or less. The complainant believed that it was not possible to both meet customers needs and at the same time clean. The owners stated that they never required him to clean the meat and deli area and the instruction to clean his band saw and block was a reasonable one.

The complainant believed that he had an agreement with the then owner of the business made in 2001; that covered both his work duties and terms when he received an increased hourly rate of pay when he essentially agreed to cover for 2 employees who left his work area. He had agreed to be very flexible based on changing commercial circumstances. It was also agreed he would get some additional support. Crucially this agreement meant that he would not be required to clean.

The complainant maintained that he was always flexible. However, in recent years the demands that were being placed on him, in his view meant that hygiene and quality standards were being compromised. He was being asked to prepare and date product based on the need to sell the product and not based on best before sell dates. The employer robustly rebutted any suggestion that standards had been compromised and their record spoke for itself. The business had never failed any audit or inspection and always placed health and safety to the forefront of all transaction and was the basis of running a good business.

The complainant felt that he was being moved out and when the owners considered using vacuum packed product rather than doing their own meat preparation, the complainant believed that this was a serious diminution of his role. If they wanted to make him redundant, they could have. However, they chose a path of conflict and unreasonable requests to the point that he lost confidence in his employer. Then they pursued a plan that in essence would reduce his role to that of shop assistant in contrast to his role as a craft butcher.

The complainant had raised grievances about his treatment; however, this in turn only led to him being threatened with disciplinary action and sanction.

On the 6th of September 2019 the complainant wrote to the owners and stated:

“I would like to inform you that I am resigning from my position as Butcher for Mahons Spar Supermarket, effective immediately. It is with great sadness and regret that in my 29th year of working in Mahons that I, after considerable anguish, have no other option but to resign. I find my position is untenable. My terms and conditions of employment were being changed. When I brought this to your attention via letter, the said letter was answered with the threat of disciplinary action. I find this upsetting given my loyal service over 28 plus years. When I returned to work on 03/09/2019, you both asked for a word with me in the office. You were both aware that I had been certified by my doctor to be unfit for work due to stress and anxiety. Joseph informed me that he felt that my certified sick leave was very convenient seeing that I was delivered a letter on Friday. As you know, this is the second sick leave certificate that you have received from me in my entire term of employment. I found this also very upsetting. You both informed me of your own stress. I feel that as employers, you did not need to inform me of this. On 04/09/2019, Wednesday morning, on commencing my shift, I was met with the cleaning up not having been completed from the close of business the previous night. Again, I informed both of you of this issue. Joseph answered “so?” while Mary answered that this was a health and safety issue for me. I then had no option but to leave my workplace due to being unable to serve customers before the cleaning up was completed. In my many years of being a Butcher I have never experienced cleaning up to be left until the following morning. I then received a text message informing me of a disciplinary hearing that I was expected to attend that same evening. Presently, my health and wellbeing is more important to me as opposed to becoming upset and stressed in my workplace. This workplace is one that I previously enjoyed so much as I have always loved my job and I have always taken great pride in the service that I provide. I have no full time position to transition into, however I find it easier to give to you my resignation. At this stage, I trust that this letter, in addition to my previous letters, outlines my current position effectively. In conclusion, I expect all due annual leave days to be provided to me. Please could you also provide me with my P45 as soon as is possible”

The complainant maintained that there was a fundamental breach in his contract terms and that the conduct and behaviour of the employer was unreasonable to the point that the mutual trust and confidence required to be maintained had been broken.

The employer maintained that the complainant found change difficult to cope with. The business was facing very significant financial losses. The meat and deli counter were also losing money. The requests made to the employee were reasonable. The conduct of the employer when considered in the round and the pressures they faced was both responsible and considerate. No breach in contract occurred.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(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

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court stated was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

Has a fundamental breach of the contract occurred in this case? This is a business under very significant financial stress. The employer in this context requested that the employee take on the additional responsibility of cleaning his saw and block; the employee categorically refuted this was the request and instead stated that he was required to clean the entire meat counter. There is a direct conflict between the parties on this important matter. The employer maintained that the task would be completed in 30 minutes. The employee maintained that it would require at least 2 hours. He stated that when having regard to the workload that he agreed to take on, this additional workload of 2 hours cannot be viewed as reasonable.

On the 5th of December 2017 the employee writes to a director as follows:

1.       Terms were changed and agreed in February 2001 when another employee left.

2.       My rate increased to €20 per hour to reflect the increased workload.

3.       Since then, until October 2017 a young person would come in and clean up.

And he states:

“Unfortunately, the help with cleaning was cut back in October and now only comes in on Friday and Saturday. I was asked to increase my duties but at no time did you try and speak to me about what that actually meant for me and my work. I tried to explain to you what this meant and how I would have to stop serving customers earlier in order to properly clean the meat counter which can take about 2 hours.”

I note that all the text messages between the parties and the correspondence between them refers to meat counter and not to the specific task of cleaning his blade and saw. However, in the complainant’s letter to the directors dated the 12th of August 2019 he stated:

“When the meat counter becomes busy between 4.30pm and 6.30pm, it is impossible to adequately clean the equipment without rushing before finishing my duty.”

This narrows down what the task entailed to equipment, which is more corroborative of the employer’s version of what was requested.

In the same letter he stated:

“With regard to the beef being brought in boned, again I am highlighting to you that I am a butcher. This is my trade and always has been. I can only advise you as far as I am aware that in being brought in vacuum packed, while being open to correction, there is 3 days to sell this product before there is need to dispose of it. I do not feel it is the “sign of a bad butcher” if one fails to sell within such a timeframe.”

At the hearing the complainant stated that he would have preferred if the owners didn’t tell him about the financial pressures that the business encountered.

On balance I don’t believe that the cleaning duties required to be carried out amounted to just 30 minutes. I also don’t believe that they would require 2 hours. This business was struggling to adapt to a more competitive landscape and to modernise and to merchandise and sell product as their competitors were. The conflict that arose between the employee and the owners was caused by the necessity to change and the resistance and/ or inability of the employee to change. This is a sad case, as the employer and employee had worked together for more than 29 years. Both parties came under pressure as result of the changes in the marketplace. The supermarket needed to change, and the employee believed that what was being asked from him was unreasonable.

This employee found the change difficult to handle. However, the test that I must apply is an objective one. I find that the changes required were not so unreasonable that they justified the employee leaving his job. I don’t doubt that the changes asked for created huge stress. However, the owners were also under huge stress. There were encounters between both parties that clearly were conflictual and at times words spoken in the heat of moment that were inappropriate. However, these comments must be viewed in the context of an ongoing exchange between the parties for several years against the backdrop of mounting financial losses.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

1.       The test is objective

2.       The test requires that the conduct of both employer and employee be considered

3.       The conduct of the parties as a whole and the accumulative effect must be looked at

4.       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.

Looking at the cumulative interactions between the employee and the owners, and what the employee viewed as a failure to hear his grievances does this meet the threshold of unreasonableness? I find that the employer did ask for significant change. However, that change must be viewed in the context of the changes taken place in the marketplace and the financial losses incurred by this business. I find that the reason for the change was not unreasonable in this context. At times the conduct of the employer was not appropriate; however, I do not find that it was so unreasonable to amount to a breach of the implied term of mutual trust and confidence required to be adhered to. When viewed objectively the basis to uphold the complaint of constructive dismissal has not been met. I don’t doubt that stress and anxiety was created by these requests to change. However, when the overall context is considered, these changes were required and necessary.

The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

1.       The test is objective

2.       The test requires that the conduct of both employer and employee be considered

3.       The conduct of the parties as a whole and the accumulative effect must be looked at

4.       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.

Looking at the cumulative interactions between the employee and the owners, and what the employee viewed as a failure to hear his grievances does this meet the threshold of unreasonableness? I find that the employer did ask for significant change. However, that change must be viewed in the context of the changes taken place in the marketplace and the financial losses incurred by this business. I find that the reason for the change was not unreasonable in this context. At times the conduct of the employer was not appropriate; however, I do not find that it was so unreasonable to amount to a breach of the implied term of mutual trust and confidence required to be adhered to. When viewed objectively the basis to uphold the complaint of constructive dismissal has not been met. I don’t doubt that stress and anxiety was created by these requests to change. However, when the overall context is considered, these changes were required and necessary.

The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim

Constructive Dismissal