Complainant

Respondent

Parties

Joan  Thomas

Sallysalon Services (Ireland) Limited

Representatives

Edmond Smith of Independent Workers Union

Karen Hennessy of  Mason Hayes & Curran Solicitors

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-00045583-002

26/10/2021

The complainant has made a complaint of constructive dismissal.

The complainant submits she was invited to a meeting with her line Manager on 21 August 2020 to discuss her return to work. It was supposed to be a “friendly chat” but the Area Manager was also present. The complainant felt intimidated and was very upset by the effect of this on her child, who she had to bring and saw what went on through the glass wall to the office. The complainant contacted the Area manager to say how unhappy she was at the meeting, especially when her child was present.

On 14 April 2021 the complainant received a letter from her line manager which stated she should return to work the following Tuesday. Later, the worker became aware that other employees on a WhatsApp group had been informed only to return to work when the employer said so, in accordance with Government guidelines. On 19 April 2021 the worker contacted the company to explain she could not return to work due to childcare issues. On 20 April the line manager paid a visit to the complainant’s home to hand deliver a letter which stated she should return to work on 26 April 2021 and if she did not do so they would consider she had resigned.

The complainant contacted HR to fully ascertain her position. This was followed by a letter from her union representative on 28 May 2021 but there was no reply.

There was a Welfare meeting on 8 June 2021 which only confirmed the worker was out on work related stress. She was asked to sign a consent form re her medical history but raised a query as to whether this was the Company doctor. She did not get an answer to this query.

On 28 May 2021 the complainant raised a grievance against her line manager and the Area Manager.  The grievance was heard on 14 July 2021.

Later in July the worker was informed by Revenue that a number of PAYE/PRSI payments had been run through her account by the company. There was a Webex meeting on 27 July but the company’s email response after the meeting was far from satisfactory. They said that their external payroll provider had issued her PPS number to another employee.

The grievance findings were issued on 13 August 2021 and the complainant appealed the findings.

The complainant resigned on 9 September 2021 as she felt that all trust between herself and the company had evaporated, and she was concerned for her mental health because of all the stress.

On the same day she received an email to say the PPS issue had been resolved but gave no apology.

The respondent submits the complainant was employed as a Receptionist from 11 July 2008 under a contract of employment dated 16 March 2009, until her resignation on 9 September 2021. She worked part-time, 6 hours per week.

Due to the Covid pandemic the respondent had to shut their walk-in business. Many of their employees, including the complainant, were laid off. In April 2021 the respondent contacted the complainant by letter and phone to advise that the business would be re-opening and she would be required to return to work the following week. The complainant went out on sick leave from April 2021 until her resignation on 9 September 2021.

The respondent kept in contact with complainant during this period of extended sick leave, in accordance with the company policy, to ask for updates in relation to her wellbeing.

The complainant lodged a written grievance on 28 May 2021, relating to actions by her line manager, the Area Manager and the respondent generally, in relation to how she was dealt with in relation to ‘return to work’ matters. A grievance meeting took place on 14 July 2021. In the four weeks following this meeting there was regular communication between the respondent and the complainant and her union representative in relation to confirming the minutes of the grievance meeting.

At the complainant’s request a virtual meeting was convened on 3 August 2021 to discuss an additional matter regarding a payroll issue.

The respondent issued the outcome of the grievance on 13 August 2021. The complainant was given extra time to submit an appeal but no appeal was lodged within this time period and the respondent considered the grievance closed.

The respondent submits they followed appropriate company policies and strongly denies the complainant was constructively dismissed. The say the onus of proof is on the complainant to establish that the actions of the respondent were so unreasonable that she had no option but to resign and/or a fundamental term in the contract of employment was breached. They submit that neither test is satisfied.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment. The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1]. It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” 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 as discharged from any other performance.” The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

In relation to the “reasonableness test” the Complainant contends that the respondent dealt with the issues she raised so badly that that all trust between herself and the company had evaporated, and she was concerned for her mental health because of all the stress.

The Respondent disputes the Complainant’s contention that she was forced to resign. They say they delat with her grievance in accordance with procedures and when she did not appeal the outcome within the time allowed they considered the grievance closed. They say they dealt with other issues raised by the complainant; such as the issue surrounding her PPS number.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his or grievance with their employer.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[2] 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 demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal in the case of An Employee v An Employer[3] held that: “In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The chain of events leading to the complainant’s resignation started when she was asked to return to work. She gave evidence she had childcare issues that made it impossible for her to return when asked. She told the respondent this when first asked to return to work but, there is no evidence this was discussed fully with the respondent. Nor did the complainant give evidence she made efforts to resolve the issue. The complainant went on sick leave and stayed out on sick leave until she resigned. I consider there was an onus on the complainant to raise any issues that made it difficult for her return to work and allow the respondent the opportunity to engage with her. From the evidence given by both sides this discussion did not take place.

Therefore, in considering this issue, I am not satisfied that the complainant had no option but to resign. Having regard to the totality of the evidence adduced, I find that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met; in circumstances where the Complainant failed to exhaust the procedures available to her before taking the step to resign, thereby not providing the Respondent with an opportunity to fully address her grievances.

In relation to the “contract test” the Complainant has made no claims that the Respondent breached her contract of employment. Therefore, I find no evidence to suggest that the Respondent was guilty of conduct which amounted to a significant breach going to the root of the contract of employment, or which demonstrated that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was so unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

For the reasons given above I find that the complainant resigned from her employment of her own volition and was not constructively dismissed and the complaint is not well founded.

Constructive dismissal – not unreasonable