Complainant

Respondent

Parties

Agata  Bobowik

Robsim Trading Ltd Centra Ballybrit

Representatives

SIPTU

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040223-001

02/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00040223-002

02/10/2020

The complainant submits that she was unfairly dismissed on the 1 September 2020. She further submits that she was denied her statutory notice payment.

The complainant commenced employment with the respondent on 21 July 2007 as a Deli Assistant and was promoted to Deli Manager in July 2015.

She was summarily dismissed on 1 September 2020.

She worked 37.5 hours a week. Her weekly salary was €497.25.

She submitted her complaint to the WRC on 2 October 2020.

CA-00040223-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The complainant’s representative spoke on behalf of the complainant. The complainant was assisted by an interpreter who took an affirmation. The complainant chose not to give direct evidence.

The complainant’s representative referred to the relevant elements of their written submission. The complainant commenced working as Deli Assistant with the previous employer. That business was purchased by the current owner in October 2019 and the complainant transferred into the current respondent’s business under TUPE.

In July 2015 she was promoted to the position of Deli Manager.

The complainant had a difficulty with the revised shift arrangements, introduced in March 2020, due initially to working in another position and, thereafter, due to transport difficulties. She had to finish her shifts at 1.30 and could not work until the revised times of 2pm or 3pm because her husband needed the one family car to get to his work. To take a bus, she would have to walk on a road without a footpath.

 The employer dismissed her on the 1 September 2020.This amounted to seriously unreasonable behaviour.  No alternatives to dismissal were considered.  In contrast, the complainant did show flexibility in that she offered to reduce her hours and pay so as to finish at 1.30 pm. She suggested an alternative shift from midnight to 8am. She also offered to postpone her return to the store until the exigencies of Covid-19 had subsided. The alternative offers in other stores were not genuine and the person who could explain these offers was not in attendance to give evidence as to whether these options truly existed.

The person who dismissed the complainant is not here to give evidence as to alternatives in the business.

The complainant’s written submission contested the respondent’s case that the complainant was in breach of her contract as she did not have a permanent contract and her working hours were not specified in her contract.

Legal Authorities.

The complainant relies on the High Court decision of Bank of Ireland v Reilly (2015), IEHC 241 which held that the question rather is whether the decision to dismiss was within the range of reasonable responses of a reasonable employer. Applying this decision to the complainant’s circumstances, the decision to dismiss is based on a very unfair interpretation of her contract of employment which is devoid of any obligation to work a set number of hours per week; nor does it contain any specific shifts.  Neither does it oblige the respondent to provide any hours at all. Therefore, the complainant was under no contractual obligation to fulfil the hours specified by the respondent. Her inability to work the hours specified by the respondent cannot amount to a breach of her contract or to gross insubordination as alleged and for which she was dismissed.

The behaviour does not meet the threshold of a reasonable response. The sanction was disproportionate.

Remedy

The complainant is seeking compensation for this unfair dismissal.

Mitigation of loss.

The complainant secured alternative employment on 29 April 2021 at a weekly rate of €449.55, a difference of €47.70 per week.

 The representative submitted details of the complainant’s efforts to mitigate her loss and identified 32 applications for positions from 1 September 2020 up until 30 March 2021.

Her loss for the 72 weeks is €3434.

CA-00040223-002. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

As the complainant was unfairly dismissed, she is entitled to six weeks ‘pay which amounts to €2983.50.

CA-00040223-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The IBEC representative read the respondent’s submission into the record.

The respondent operates three retail stores and a garage in the Galway area.

The respondent denies that the complainant was unfairly dismissed. She was dismissed for substantial grounds in accordance with section 6(4)(b) of the Act because of her conduct. In refusing to work her rostered hours, she was in breach of her contractual obligations to the respondent. She was also afforded fair procedures.

Evidence of Witness 1. Group HR manager for the respondent’s three stores.

The witness gave evidence under affirmation.

The witness stated that the complainant’s contract transferred from the previous owner to the current respondent on 18/11/2019 on the same terms and conditions as she had previously enjoyed in accordance with TUPE regulations. That contract provided for her to work the weekly hours specified by her manager.

The complainant had stepped down from her position as Deli Manager in February 2020 and assumed the position of Deli Assistant in March 2020, citing too much administrative work, and despite the efforts to dissuade her from this course. She had also looked for a salary increase. She worked 37.5 hours in both positions.

Prior to the respondent assuming control of the store in November 2019, the delicatessen had opened at 5.30 am. This opening time was set by the complainant who was the then Deli Manager. The complainant was the only person who commenced at 5.30 am. Upon reviewing the business needs of the store on 4 March, the respondent decided to change the shift time to 6am- 2pm, to take effect from the 16 March. The witness informed staff of the change on the 13 March 2020. The earlier opening time was of no value as many of the respondent’s customers were employees of nearby factories who started work at 7 or 8 am. There was no business between 5 .30 and 6am.

In addition, due to the upheaval in customer demand caused by Covid-19 and associated Government Guidelines, the shift was further changed to a 7am – 3pm shift on 19 March.

On 16 March, though rostered to work until 2pm, the complainant left at 1.30 pm without permission. On Thursday 19th March, the witness told the complainant that she had to work the complete shift. The complainant told the witness that she had to leave the shop at 1.30 because she had a second job minding children.  The witness offered her hours in one of the other respondent’s nearby stores which had a start time of 5.30am or, alternatively, weekend shifts. The complainant declined these offers. The complainant was reminded of her obligation to complete her shift yet still left at 1.30pm on the 23, 24 and 25 March

On the 25 March, the HR manager invited the complainant to a meeting on the 26 March with the store manager to discuss her failure on three occasions to comply with the store’s attendance policy, her refusal to perform work assigned to her and refusal to obey reasonable instructions of the manager and working elsewhere while absent from work. The invite notified her of the possibility of disciplinary sanctions up to and including dismissal. The complainant was issued with a verbal warning following this meeting.

On 31 March, the complainant and three other staff were laid off due to the impact of Covid-19 on the business.

Once business opened again, the respondent invited the complainant to resume work on a 7am- 3 pm shift on 8 June 2020. Within this shift, the busiest period was 12md – 2pm. The complainant advised in correspondence, that she could not work beyond 1.30 pm. She offered to work from midnight to 1.30 pm on two days a week; she suggested that the period 1.30 to 3pm could be covered by other staff. She offered to cede her hours to another employee until, post- Covid-19, the Delicatessen could revert to a 1.30 pm finishing time. None of these options were feasible.

She declined to return to work until she could revert to her 5.30am start time.  

The witness wrote to her on 23 June reminding her of her obligation to comply with the flexible hours provision in her contract and that failure to do so could lead to further disciplinary action up to and including dismissal. The complainant was invited to confirm by 26 June that she would work her rostered hours. The complainant did not return to workplace after 1/7/2020 as the respondent did not provide her with the roster which she sought viz, 5.30 am to 1.30 pm. The absence of agreement to work the specified shifts led the respondent to call the complainant to attend a disciplinary meeting on the 24 July. Again, the complainant refused to agree to work the respondent’s roster- a roster based on the operational needs of the business. On 1 September the respondent summarily dismissed the complainant for gross insubordination and a breach of her contract and advised that this rendered her ineligible for notice.  The complainant exercised her right to appeal. It was not upheld and the decision to dismiss the complainant stood.

Concerning her claim that she had always worked 5.30am -1.30pm, the later shift, pre-pandemic, was 10am – 5pm. The respondent’s records showed that from October 2017 until October 2019, when the respondent acquired the store, only 48% of the complainant’s shifts commenced at 5.30 am and finished at 1.30 pm.   During the same period, only 51% of the complainant’s shifts finished at 1.30pm. The staff in the delicatessen never worked around the clock.

Correspondence was opened demonstrating the disciplinary meetings which took place with the complainant

The witness believes that it is the job of employees to ensure that their transport arrangements are compatible with the respondent’s shifts. The respondent was unable to accept that she had to finish her shift at 1.30 so as to enable her husband to use the family car. The respondent submitted timetables as part of their evidence showing buses ran from the respondent’s store to near her home.

Cross examination of witness.

The witness accepted that the complainant had given excellent service. The witness stated that he was surprised when she stood down as Deli Manager.  She stated that it was due to too much paperwork. He accepted that the commitment to give the complainant a pay rise was not followed through.

The witness confirmed that the change from 5.30 to a 6am start was notified on 13 March to take effect the following Monday 16 March. It was merely a half an hour’s change.

The witness stated that the second shift change- from 6.30 to 7am- came into effect on 19 and was due to Covid-19. The witness stated that it was not operationally feasible to offer the complainant two eight hour shifts as other staff would seek the same arrangements.

The witness accepted that there were no minutes of the meeting of 26 March.

The witness stated that the complainant was offered a shift which commenced at 5.30am in another Galway store on the Tuam Rd., five kilometres from her current store. The witness when questioned as to the accuracy of these opening times in two other Galway stores stated that he had not researched it. The witness stated that he was unaware that staff in the Ballybrit store, the complainant’s place of work, were putting bread into ovens at 5.30 am.

The witness stated that it was not feasible to engage an employee to work from 1.30 pm to 3 pm. The witness stated that no member of staff was offered a finishing time of 1.30pm. They did show flexibility. In response to the representative’s statement that the complainant was trained to work on tills, the witness stated that the complainant never asked if she could work on the tills. The Delis are not open from midnight to 6am.

The witness was not aware that the bus was some distance from the complainant’s home nor that there was no footpath on the route from the bus stop to her home, but this does absolve her from having to organise her own transport to work.

Witness 2: the store Manager.

The witness corroborated the Time Point data, based on the complaint’s timesheet records, submitted in evidence, contradicting the complainant’s case that she had a contractual right, or that she had always worked the 5.30am – 1.30 pm shift. This data showed that the complainant worked beyond 1.30 pm on some occasions in June 2019, on six days in August 2019, and up until 9pm in September 2019, she worked until 5pm on four occasions in October 2019,

The IBEC representative stated that respondent behaved reasonably. He offered the complainant options. The offers from the complainant ruled out any work beyond 1.30pm.  Her offer of an eight-hour shift between midnight and 8am was irrelevant as the store was closed until 6am. While she did offer to work reduced hours until 1.30 with reduced pay, this was not a viable option as the respondent would be unable to get staff to work for a one and half hour period.

Given the impact of Covid -19 – a 5 km travel limit, people working from home, the respondent was quite entitled to change shift times to suit business needs and customer trends. The Ballybrit store was the worst affected. Staff numbers went from twenty-two to nine. The Deli hours had to change because of operational needs.

She was offered the option of an appeal against the verbal warning and declined to avail of this option.

The decision to dismiss was proportionate to the circumstances facing the respondent

Legal Authorities.

The respondent relies on the EAT decision of    Cashman v St Patrick’s Hospital, Cork, UDA 154/2013, which found that the dismissal of a claimant whose persistent failure

“to obey a lawful and reasonable instruction amounted to a serious sundering of the employment relationship”.

The dismissal was deemed to be fair. So also, in the instant case the complainant persistently refused to work the roster assigned to her.

The respondent submits that the dismissal was fair but should the adjudicator find to the contrary, no compensation should be awarded as the complainant failed to adequately mitigate her loss.

CA-00040223-002. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complainant was summarily dismissed and is not entitled to notice.

CA-00040223-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

Relevant Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“Subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states

4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) n/a

(b) the conduct of the employee”

In considering a complaint of unfair dismissal, I am obliged to consider the substantial grounds for the dismissal and the procedures used to effect the dismissal.

 Did substantial grounds for dismissal exist?

The grounds cited for the complainant’s dismissal were:

Persistent failure to follow a reasonable management instruction. The complainant was in breach of her contractual obligations to the respondent in refusing to work her rostered hours and this conduct amounted to gross insubordination.

The constant in this complaint is the unwillingness of the complainant from March to July 2020 to work beyond 1.30pm. This is not disputed.

Breach of a contractual obligation.

The complainant asks me to accept that her contract does not permit the respondent to insist on her working any set hours and their insistence on same was therefore invalid.

But her signed contract of the 10 October 2018 provides that

“You are normally expected to be flexible in your position……… Your hours of work will be communicated to you on a weekly basis by your manager and will vary from week to week. Hours may vary depending on the operational requirements of the store but will include weekends, Public Holidays and night working as part of your normal roster”

The complainant also asked me to consider that her tenure of an uninterrupted shift of 5.30am- 1.30 pm for many years meant that she weas entitled to retain that shift pattern and that any insistence on an altered shift was invalid and not in compliance with her contract.  She augmented this point with examples of how she offered the respondent alternative shift options. But the uncontested evidence from the respondent’s records illustrate that she complied with the requirement to work variable hours in 2019, and from 2017-2019 when over 50% of her shifts extended beyond 1.30pm. Furthermore, I accept the respondent’s statements that the alternative options, offered by the complainant, were not viable. I find these facts invalidate the complainant’s entitlement to contest the respondent’s right to vary shifts. Aside from these points, the period March- July 2020 was a time of great upheaval, characterised by working from home with the inevitable reduced customer base for any food store or Delicatessen, and changed working patterns.

I find that it was unreasonable of the complainant to expect the respondent to forgo their operational needs and to tailor their shifts to meet her admittedly problematic transport requirements, more especially as in the initial stages of the disciplinary process, her transport needs were based on the need to travel to a second job. This is especially so given that the respondent put other options to her.

I find that the complainant was in breach of her contractual obligation to the respondent.

I am obliged to consider if her refusal over a four-month period to confirm her agreement to work the altered shifts, as directed by the respondent, amounts to gross insubordination. The respondent relies on Cashman v St Patrick’s Hospital, Cork, UDA 154/2013, which found that the dismissal of a claimant whose persistent failure to use a staff car park where all other staff were complying with this direction amounted to gross insubordination and “a serious sundering of the employment relationship”.

It is noticeable in the instant case that the complainant chose not to accept the revised shift under protest and chose not to activate the grievance procedure. In HSE Dublin N/E v Annamay Tiernon, HSD088/2008, the Labour Court found that an employee’s refusal to act as a sole operator as an emergency medical technician, a common enough request, was improper. The Labour Court confirmed that the employee should have worked, but ‘under protest’. Due to defective disciplinary procedures, that employee was awarded compensation.

Based on the evidence and the circumstances facing the respondent, I find that the instruction to the complainant to work beyond 1.30 was legitimate. The requirement had been clearly communicated to the complainant. It was given in good faith. The complainant understood what was required of her. The complainant in full knowledge of the consequences of her refusal to comply with the respondent’s request, refused to work the specified shifts over a four-month period. I consider this behaviour to amount to gross subordination

Accordingly, I find that there were substantial grounds in accordance with section 6(4)b() of the Acts to dismiss the complainant.

Procedure.

Section 6(7) of the 1977 Act as amended states

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7(2) of this Act”.

The respondent initially addressed the matter informally with the complainant. The complainant was on notice throughout of the consequences of her decision, was offered the right to be represented at each stage of the process and was given the option to appeal which she exercised in respect of the dismissal.

 I find the evidence reveals that the respondent complied with the requirements of S.I 146/2000 and that the process employed in dismissing the complainant was not unfair.

I do not find this complaint to be well founded.

CA-00040223-002. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant was summarily dismissed. Section 8 of the Minimum Notice & Terms of Employment Act, 1973, as amended, states

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”.

As I find that the complainant was not unfairly dismissed, I do not find this complaint to be well founded.

CA-00040223-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I do not find this complaint to be well founded.

CA-00040223-002. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

I do not find this complaint to be well founded.

Breach of contract; insubordination.