ADJ-00027309

Complainant

Respondent

Parties

Livia  Balkova

The Fairways Childcare Centre Limited  t/a The Children’s House

Representatives

Anne Manning , Solicitor of Breen Manning Solicitors

James McElwee , Solicitor of McElwee 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-00034925-001

28/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034925-002

28/02/2020

The issues in contention concern an alleged Constructive Dismissal and a related Hours of Work complaint.

The Employment commenced on or about the 1st March 2012 and ended on the 3rd September 2019.

The rate of pay was € 380 Gross for a 38-hour week.

1:1        CA - 00034925-001 – UD Act,1977 Complaint.

The Complainant made an Oral Testimony supporting her written Complaint form. She was fully cross examined by the Respondent Legal Advisor, Mr. McElwee

The Complainant had worked happily since 2012 without any negative issues from her Employer. In February 2019 a new Assistant Manager was appointed, Ms.CK. Relationships with Ms. CK deteriorated badly. The Complainant felt that she was being bullied by the Assistant Manager and subjected to a regime of incessant supervision over trivial issues. The question of Lunch Breaks became an issue. They were previously arranged informally amongst the staff but now all had to be recorded and signed for. This led to tensions with Ms.CK.  An incident also arose over the proper administration of medication to a young baby. Efforts to appeal to the Owner/Manager Ms. MB, were unsuccessful. She completely supported Ms.CK in all situations where the Complainant raised concerns.

On the 17th July 2019 HR Consultants Canavan Byrne accompanied the Owner /Manager, Ms MB to a meeting with the Complainant. Proper formal procedures were not followed, the Complainant had no Representation and purpose of the meeting was not explained to her in advance. The Complainant was placed on a Performance Improvement Plan - a PIP. The meeting was completely unfair. The Complainant was blamed for many issue over which she had no control.

The situation became intolerable and the Complainant’s GP certified her with “severe Stress”. She had to take Sick leave and felt she had no option but to Resign.

1:2       CA - 00034925-002 - Organisation of Working Time Act, 1997 Complaint.

The break situation had been informal since 2012. In February 2019 formal half hour lunch breaks were introduced. However, while they had to be signed for, they often did not take place at all or took place “On the job” while actively minding children. No Morning or Afternoon 15-minute breaks were ever taken.

2:1   The Respondent Owner/Manager made an Oral Testimony with some supporting Documentation. Full cross examination of the Respondent Witness took place by Ms. Manning for the Complainant.

CA - 00034925-001 – UD Act,1977 Complaint

The Oral Testimony was given by Ms. MB, the Owner Manager. By way of background it was stated that the Creche was long established and successful. Ms. MB had been the founder. With the passage of time all Creche operations had become much more formal and legally regulated. TUSLA inspection were now a required event. Ms. MB had seen the need to update much of the creche’s operation from a regulatory point of view and had hired Ms. CK, as Assistant Manager. Effectively she was the day to day Manager as Ms MB had sought to reduce her direct personal involvement.

The Complainant had been a very good staff member since 2012. However, a high degree of informality as regards procedures etc had developed. There was nothing amiss in this, but proper procedures were now a strict requirement from TUSLA. The recording of Breaks, Staff ratios present during Opening Hours, Administering Medication Protocols, Mobile Phone use etc were examples.

The New Regulatory arrangements, as required by TUSLA, introduced by Ms CK was a source of annoyance to the Complainant. As an example, she was used to slipping out home on occasions for domestic/school issues (she lived 5 mins away) and the more regulated regime, as required by TUSLA, made this more difficult. There had been a pattern developing of conflicts with Ms.CK. A number of informal conversations had taken place with the Complainant largely about Ms.CK.

Eventually it was decided to seek the assistance of HR Consultants Canavan Byrne. In July a meeting took place. It was not intended to be anything more than an informal exchange. The PIP was simply a means of documenting changes that the Complainant needed to make.

She was an excellent employee and had been comprehensively supported during the period of her Father’s very sudden and completely unexpected death in late 2018. The Respondent had absolutely no desire or intention to end the employment of the Complainant.

It was pointed out that the Complainant had immediately, the same day as her resignation, commended employment in another local Creche and subsequently secured employment as an SNA in a local school.

In Cross Examination the Respondent Legal Advisor asked if the Complainant had ever raised any formal Grievance with the Employer. She had not but had sought to speak to Ms. MB about her issues.

In final summary the Respondent contended that the Constructive Dismissal allegation was completely without any proper foundation. She had resigned after some sick leave and gone immediately to another Creche.

2:2       CA - 00034925-002 - Organisation of Working Time Act, 1997 Complaint

It was accepted that a degree of informality had existed in the years from 2012. However, all Breaks were now fully recoded (since 2019) in a Log Book. As in any organisation unexpected staff absences could impact on the timing of breaks. All staff were facilitated in taking all required breaks although this could vary, especially the timing, depending on operational issues. The Complaint has no real basis.

3:1        CA - 00034925-001 – UD Act,1977 Complaint.

It has to be noted that this is a case of Constructive Dismissal where an employee resigns from an employment. The fact of resignation was not disputed.

The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, 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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However legal issues notwithstanding each case rests on its own evidence and particular circumstances.

As an aid in reviewing the evidence presented use will be made of the Three accepted Legal tests referred to above – Breach of Contract, Unreasonable Behaviour and Use of Procedures.

3:2          Review of all Evidence / Oral and Written

3:2:1      Test One -Breach of Contract

As stated the Breach of the Employment contract has to be of a most serious nature – “going to the root of the contract”.

In this case there was no evidence of proper wages not being paid or holidays afforded. The only issue was the question of breaks being taken and this was contested strongly. On overall balance it was hard from an Adjudication point of view to see any fundamental Breach of the Employment contract such as to support a Constructive Dismissal complaint.

Tests No One does not support the Complainant.

3:2:2        Test Two: Unreasonable Behaviours by either side but principally by the Respondent Employer.

In the legal section above the reference is made to the need for Behaviours to be “Egregious” or in plain English so bad, so completely unreasonable that no normal “reasonable” person could be expected to put up with it.

In the Oral Testimony of the Complainant and of the Owner / Manager Ms. MB a wide range of issues were discussed. Time was devoted to discussing a case of the administering of medication to an infant and the actions of both Parties in the case. This was obviously a potential “Hot Button” issue in any TUSLA review. The timing of Breaks, the number of staff present, the TUSLA required Ratios, the need to have a set of Proper Complaint Procedures were other issues discussed.

 From the point of view of an outside observer, in an Adjudication Officer role, it was hard to see good evidence of very bad Unreasonable Behaviours by either side.

Regarding the PIP process this appeared to have been driven by Management frustration with the Complainant and the negative interactions with Ms.CK, the new Assistant Manager.

It clearly was perceived by the Complainant as very negative and in legal terms as “Unreasonable”.

The Respondent letter of the 18th July 2019 setting out the PIP plan refers to the main issue as being “Routine Childcare Procedural tasks” which had been the subject of TUSLA representations to the Owner/Manager. The last paragraph of the letter does refer to “possible disciplinary action up to and including dismissal”. The Complainant strongly argued that the largely unannounced in advance PIP meeting, where she was not afforded Representation, was almost in effect setting the stage for her to fail and be subsequently dismissed.

It was not a pleasant piece of correspondence for the Complainant however the question has to be does it constitute “Unreasonable” management actions so bad as to warrant a Constructive Resignation.

From an outside observer and Adjudication officer view point the answer has to be that the bar to justify an action like the PIP as Unreasonable is high for the Complainant. There is significant case law precedent in this area. Redmond on Dismissal Law, Third edition by D Ryan, Bloomsbury 2017 covers this area in some detail.

 Management, across the board, write formal letters to Staff and put staff on PIP Plans. It may have been handled a bit severely in this case – an employment that was for most of the Complainant’s career run on quite an informal basis going down the road of a formal PIP was bound to be upsetting. However, to an objective observer, it was hard to see it being so bad as to qualify as “Unreasonable” from a Constructive Dismissal point of view.

Having reviewed all the evidence, the conclusion has to be that Test No Two does not support the Complainant’s Constructive Dismissal complaint.

3:2:3        Test Three: Use of Procedures.

This was a mixed bag. The Complainant felt that she had often verbally made her upsets well known to the Owner/Manager. Nothing was ever put in writing. She was a long-standing employee with no negative disciplinary record. It was an informal type of organisation up to 2019. On balance the Adjudication view is that the Complainant cannot be faulted on Procedures prior to the PIP. Afterwards she could have responded in writing but by that stage she was out on sick leave.

As regards the Employer, the formal procedures surrounding the PIP meeting could have been improved upon.

However, on balance, having considered the evidence, Test Three, favours neither side to any major extent.

3:3:         CA - 00034925-002 - Organisation of Working Time Act, 1997 Complaint

This complaint in many ways demonstrated the key issues in this case. An atmosphere of informality had characterised the employment for many years. This in itself was not a negative and all staff had worked well with no detriment to the children. However, with the advent of TUSA and the need for formal procedures the formal recording of breaks became imperative.

There was no hard evidence presented other than the conflicting verbal testimony of the Parties.

The Organisation of Working Time Act, 1997 requires the keeping of records. In effect the burden of proof rests with the Employer.

On the balance of probability, the taking of proper breaks seems to have been informal and, in all probability, outside of the strict legal requirements, not from any malice or wilful intent but simply a legacy of past more relaxed times.

Accordingly, I find in the Complainant’s favour, but the redress ordered will reflect the Adjudication view in the previous paragraph.

Redress of €250 is ordered in favour of the Complainant for breach of a statutory right.

Constructive Dismissal, Organisation of Working Time Act.