ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030958
Parties:
| Complainant | Respondent |
Parties | Carol Grant | Cote Pharmacy Ltd trading as The Village Pharmacy |
Representatives |
| Jennifer Rigney |
Complaint(s):
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-00041195-001 | 24/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00041195-002 | 24/11/2020 |
Date of Adjudication Hearing: 13/07/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate her employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that he satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That is to say that the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the employer that is being 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.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 24th of November 2020) issued within six months of her Constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would always have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
In addition to the foregoing complaint of Unfair Dismissal the Complainant has brought an additional complaint for adjudication referring a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide core details after one moth of continuous service can lead to an award of four weeks remuneration.
The balance of Terms outlined in the 1994 Act have to be detailed within the two-month period already specified.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms. The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms.
The complaint was made on the 24th of November 2020 and I can consider such contravention of the Act which is alleged to have occurred within the six-month period prior to that date. The Complainant was in employment up to the 19th of November 2020. The complaint has therefore been brought within the appropriate timeframe and I have the jurisdiction to her the complaint.
The contravention first accrues the day after the expiration of the two-month period for the provision of the Statement and every day thereafter. In the event of termination of the employment the right to bring such a claim will die six months after the end of the employment.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
Background:
The Complaint was initiated by complaint form issuing on the 24th of November 2020. The Complainant is alleging that she was Unfairly Dismissed and that she was not provided with the Terms of her Contract of Employment as directed under Statute. I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In this regard I have explained that emergency legislation is pending which will empower Adjudicators to administer said oath. The parties were happy to proceed in the absence of said oath/affirmation. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way |
Summary of Complainant’s Case:
The Complainant represented herself and she was given every opportunity to make her case and her evidence was tested by the Respondent. |
Summary of Respondent’s Case:
The Respondent was represented by the owner/director JR who gave her own version of events as employer. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The evidence was provided by the complainant in the first instance and thereafter by JR, the owner/Director of the Respondent Pharmacy. The parties agree on many factual aspects of this case. The Complainant commenced her employment with the Respondent in and around September 2017. The Complainant worked as a sales assistant and was dealing directly with customers. I understand there had been two shops and the Complainant worked across both shops mainly covering days off. The Complainant gave evidence that the two shops merged in and around September 2020 and that she was reduced to a two day week – each of 8 hours. The Complainant was four hours shy of the number of hours she had been working before this time (which had been 20 hours). As it was mentioned a number of times in evidence, I feel it pertinent to note that the Complainant was in receipt of the Family Income Supplement (FIS). The entitlement to this supplement arises where the recipient is supporting a child or children. It amounts to a tax-free weekly payment for employees who work 38 hours or more per fortnight. It seems that if your hours of work fall under 38 hours a fortnight the recipient is no longer eligible for the Family Income Supplement. The Respondent witness said she was familiar with the FIS as a number of her staff were in receipt of same. She was always willing and happy to sign the appropriate paperwork for members of her staff. When the Complainant had started with the Respondent there was no difficulty working up the 20 required hours per week. In particular, the evidence is that the Complainant was available to work Saturdays which is a busy day requiring a full complement of staff. At a date unknown, the Complainant stopped being available on Saturdays and the evidence is that JR tried to roster the Complainant into other busy times for the 20 hours she needed to work. JR did give evidence that the Complainant was not available to cover employees unexpectedly prevented from coming to work through illness or force majeure etc. JR accepted that it was more difficult for the complainant with a young child to attend at short notice. As far as she was aware the Complainant generally had the 20 hours a week, but after September 2020 that this sometimes fell back to 16 hours per week. JR did state that on at least one occasion in October the Complainant scheduled a dental appointment on a date when she knew that she had been rostered to do an eight-hour shift. In those circumstances, it is understandable that JR need not necessarily have been aware of any issue arising with the Complainant and her entitlement to the FIS. Indeed, JR’s evidence is that the first time she knew anything about it was in November 2020. In any event, the Respondent gave evidence that the complainant had been an excellent worker for three years. She was a pleasure to have around and was part of the team. It was therefore noticeable to the Respondent when the Complainant was perceived to be going through a rough patch. Her evidence is that for about a week the Complainant had been coming in late, wasn’t in great form and wasn’t taking care of her personal appearance. This was in November 2020. The Respondent was not sure what the problem was and had not addressed it before taking a couple of scheduled days off. In her absence a Locum pharmacist worked in her place. On her return to the workplace, JR said she had a conversation with the locum which had given her cause for concern. The locum (who did not give evidence) knew the Complainant and JR well and had asked JR want was wrong with the Complainant? She said that the complainant had been snappy and aggressive. In particular, the Complainant had also been conducting a heated and voluble telephone conversation out on the shop floor. The locum said that the Complainant had been using unsavoury language which had struck the locum as unusual and unacceptable. The locum also described an incident when the Complainant had been rude to a customer and she (the locum) had stepped in to deal with this customer. JR said she had put much effort into creating this business and was rightly proud of same. JR was therefore rightly concerned by what she had been told and the next day she sought to address these issues with the Complainant. This was done in private. I believe JR when she says that she asked the Complainant what was going on? I also believe JR when she says that the Complainant reacted very badly to being ticked off for aspects of her behaviour. It is an unfortunate fact that the Respondent doubled down and made some general comments as to attitude, appearance and demeanour. She told the Complainant that she was being moody and creating an atmosphere in the workplace. I accept that this was very upsetting for the Complainant who was deeply offended by this perceived personal attack. The exchange moved on to the issue of the FIS and the fact that the Complainant was no longer eligible for same in light of her reduced hours. JR gave evidence that the first time she was told anything about the FIS being at risk was in November. On balance it seems to me that the Complainant herein had previously done little to flag her concern over the FIS with her Employer. Despite what it says in the complaint form, there is no evidence of an ongoing conversation about a lack of hours and as previously noted the Complainant was not available for a lot of the week and scheduled appointments for times she should have been working.. It was in these circumstances that the Complainant resigned from her job. The Complainant left her position and opted not to come back. No grievance was raised by the Complainant. I noted that the Complainant did not deny those aspects of her behaviour which had been drawn to the attention of JR by the locum pharmacist who had been on the premises on the Tuesday. In her account of what happened she accepted that she had been conducting a voluble private phone call on the premises and that there had been an inappropriate interaction with a customer such that the locum had to step in. To my mind the Respondent was justified in wanting to address these issues To my mind the conversation which the Employer aimed at having with the Complainant on the Thursday was entirely appropriate in the context of what the Employer had been told. This was not intended to be a disciplinary meeting or issue. JR simply felt the need to say to a valued employee that recent aspects of her conduct were not satisfactory and needed to be worked on. It does however seem that the Conversation ballooned into a myriad of issues which related to the Complainant’s performance, attitude and appearance. The Complainant became extremely upset and appears to have resigned her employment. As is advisable in these circumstances the employer allowed a cooling off period and asked the Complainant to change her mind and come back. she told the Complainant how popular she is and how happy she is to have her represent her front of house. The Employer apologised for adding pressure to the Employee who was having a hard time in her own life. The Respondent really encouraged the Complainant to come back in and try and work things out with her. I am satisfied that this was an honest attempt at conciliation and that the Employer wanted the employment relationship to continue. Even a face to face meeting away from the workplace which was friendly and appropriate didn’t change the Complainant’s mind. She maintained she couldn’t return to the workplace after their interaction. On balance I am satisfied that this was not a constructive Dismissal. The Complainant admitted to the truth of the issues raised by the locum. Rather than accept this and move on the Complainant pushed back and the conversation escalated. The Respondent should not have allowed this to happen but the Complainant’s resignation was an over-reaction and was not something forced on her. Regarding the complaint raised under the Terms of Employment (Information) Act, 1994, I am satisfied that the complainant did not adduce evidence to substantiate the complaint and indeed I understand an appropriate Contract of Employment operated in this employment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00041195-001 -The Complainant was not Constructively Dismissed and the claim therefore fails. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00041195-002 - The complaint herein is not well founded. |
Dated: 23rd February 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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