ADJ-00031662

Complainant

Respondent

Parties

Melissa  Moran

C.h Kane Ltd Supervalu

Representatives

  Complainant

 Donnacha O’Connor, solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042010-002

15/01/2021

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

CA-00042010-004

15/01/2021

The complainant, Ms Moran, worked for the respondent CH Kane, Supervalu, from February 2016 until January 2021 and alleges that she was expected to work over 50 hours every week 6 days a week.  She also alleges that the failure of the respondent to facilitate her with daily hours that enabled her to tend to her relative amounted to constructive dismissal.

The complainant, Ms Moran, worked for the respondent CH Kane, Supervalu, from February 2016 until January 2021 and was expected to work over 50 hours every week 6 days a week.

In September 2020 she was informed that she would not be getting bank holiday pay as being a trainee manager she was not entitled to receive it.  Subsequently when she questioned this it was paid.  The complainant was told to book holidays and when she did they told her she could not take them that they would pay her instead.  The respondent then paid her for 2 weeks and then paid her 1 bank holiday per week for the following three weeks, leaving a week outstanding. 

The complainant had on-going issues since October 2019 when she took on the role of Assistant Trainee Manager.  She was not given a contract or terms and conditions of employment and was told it would be 45 hours per week with two days off and nearly the same hours as she had been previously doing which were either 9-6 or 10-7.  To her disappointment this was not the case. In December 2019, she was called to the office to ask how she was getting on, to which she replied that it was stressful, meaning it was more stressful than her previous role as shop floor/sales assistant. At this point the complainant was working 60+ hours a week spread over 6 days.  The manager and HR told her that it wasn’t for her and that they didn’t think it would work out.  The complainant was obviously was very upset as this had come out of the blue. She left and called her employer a few days later and asked if she could meet him. At that meeting he agreed that she could stay in the role.

The complainant highlighted issues regarding pay and hours and he paid her by 2 separate cheque for 90 hours @ 10 euro an hour. She again was told 45 hours was the weekly hours but with the workload that was given to her it could not be done in that timeframe.  The complainant was also owed for 10 days holidays for that year. The complainant continued to work until August 2020 when she questioned her holidays.  The respondent told her that her work wasn’t going unnoticed but he would not pay her for her holidays and that she should book them.  The complainant informed the respondent that it was 5 weeks being 20 days annual leave and then bank holidays previously accrued throughout the year.  The respondent informed her that it was only 4 weeks as management don’t get paid for bank holidays and she would have to take her holidays from the following Monday. The complainant is a carer for her father so this did not suit. When she tried to approach the respondent, he called her an ‘Anti Christ’ and said he was very disappointed in her in an aggressive manner and he walked away.

 The complainant told the respondent that she would be handing in her notice, which she did, because there was no way she could care for her father in the evening and be at work at the same time.   During the two weeks’ notice period the respondent called the complainant numerous times to ask her to stay, but she insisted she was leaving. Further discussion took place and the complainant was informed by her manager and Hr that they were very flexible with hours that she could do split shifts, which worked for complainant as she had to give medicine daily to her father.  The respondent again offered her a 45 hour week with 2 days off, and that she could book her holidays and that she would be paid for public holidays.

The complainant received her contract in October 2020 which was still dated 2019, and was asked to read over it and make suggestions for changes as it was said that they wanted her to be happy as well as them.  The complainant signed the contract on the 13th of October.  She then booked holidays but was then informed the respondent would pay her instead which is what she had requested originally.

The complainant enquired about the last remaining week’s holidays and was eventually told she would have to book them off. When she queried this she was called to a meeting where initially the respondent agreed to pay it but subsequently HR informed her that she had previously been told she could not carry forward unused holidays and that she would have to take the unused leave from 4th to 10th January 2021. At first the complainant said she could take them possibly at the end of January but HR said she could not carry them over as before and she was told that she would have to take the leave by the end of the year. they then agreed for the complaint to take from the 23rd Dec to the 3rd Jan, which she accepted.  The complainant’s manager approached her then and said it was not happening. Subsequently, by text the complainant informed the respondent that she would work up until Christmas Eve to deal with the busy days.  When she arrived to work she was called up and informed that she was on leave and to return home.  When she returned to work the respondent had changed her hours causing her to feel bullied and stressed.

The complainant did not receive the end of year bonus that other staff got.

When the complainant returned to work on 2nd January she spoke with her manager and employer about doing split shifts in order to provide care to her father but did not get agreement. The complainant felt bullied as the respondent said they would take a disciplinary route if she didn’t work the assigned hours.  The complainant offered to resign there and then but the respondent refused to accept a resignation letter.   They suggested that support should be available in her circumstances to help with her father and offered to look into this for her.

The complainant informed the respondent about the extra hours she worked and they in reply said that nobody said anything about the times she went to her car.  This was in relation to a 10 minute break in the evenings which she took with permission from her manager.  The complainant informed the respondent that this did not equate to the extra hours she worked.

The complainant handed in her notice effective from the following day because she felt like she was being made choose between her father and her job.

Ms. Melissa Moran (the complainant) commenced employment with Kane’s Supervalu (the respondent) in February 2016. She initially joined the company a a full-time Sales Assistant and progressed to the role of Trainee Assistant Manager in October 2019.

Ms Moran states that she was required to work more than the maximum permitted hours. As per the Organisation of Working Time Act, 1997, it is a requirement that an employee’s total hours may not exceed an average of 48 hours per week over a 4-month period. This is also stated in the Company’s employee handbook. Ms. Moran’s contract of employment stated that her expected average weekly hours of work would be 45. Ms. Moran was never required or requested to work above her contracted average weekly hours of 45 hours. In fact, while Ms. Moran was with the respondent there were several occasions when she would come to the store to work on her day off. Ms. Moran did this without the respondent requesting her to do so. On several occasions, the Store Manager, Mr. Richard Kelly, and the HR Assistant, Ms. Sheila Hargadon, spoke with Ms. Moran and explained to her that she could not come to store to work when she was not rostered. Two specific examples of this occurred on the 18th June and the 23rd July 2020. On these dates Ms. Moran came to work when she was not rostered, and Mr. Kelly spoke to her about this. In response Ms. Moran stated personal reasons for wanting to attend work. Nonetheless, Mr. Kelly instructed Ms. Moran to return home due to the importance of her taking her days off.

Therefore, the respondent does not agree that Ms. Moran was ever required to work more than the maximum permitted hours. In fact, the respondent actively dealt with occasions where Ms. Moran would come to work when she was not rostered.

The Company’s annual leave policy is in accordance with the provisions set out in the Organisation of Working Time Act 1997. The annual leave year runs from 1st January to 31st December and holidays may not be carried forward from one year to the next. On the 17th April 2020, a text message was sent to all employees outlining that they would all need to take their annual leave before year end. Employees were reminded that due to December being so busy no holidays could be taken during that month. The text message further stated the Company’s commitment to be flexible and to accommodate days off around employee needs. This notice was also posted on the employee noticeboard. A further reminder relating to employees booking their annual leave was sent via text message on the 3rd October 2020.

As a full-time employee Ms. Moran had 4 weeks annual leave per year. Ms. Moran had three weeks’ annual leave outstanding in October 2020. The Company had several conversations with Ms. Moran regarding her annual leave and requested that she take time off. As a result of the conversations with Ms. Moran regarding her annual leave, on the 8th October 2020, she submitted a suggested schedule of annual leave. The following day, the 9th October 2020, Ms. Moran requested a meeting via text message with Mr. Kelly. Mr. Kelly met with Ms. Moran that evening. Ms. Moran informed Mr. Kelly that she had reconsidered her annual leave and wanted to be paid in lieu of taking time off. She stated that she would prefer the money rather than the time off. Mr. Kelly informed Ms. Moran that he felt it would be best for her to take her entitlements but that he would discuss her request with Mr. Simon Davey, the Store Owner.

Mr. Davey agreed to pay Ms. Moran two weeks’ pay in lieu of her taking annual leave.  Ms. Moran had already taken one week’s annual leave from the 22nd September 2020 to the 27th September 2020 this meant that Ms. Moran had one outstanding week of annual leave. Mr. Davey requested that Ms. Moran take the outstanding week of annual leave to ensure she received a break. The Company acknowledge that giving a payment in lieu of annual leave is not the correct approach. However, the Company wished to work with the employee to come to some form of compromise/arrangement whereby Ms. Moran was happy but also received some time off.

As Ms. Moran had yet to book her annual leave, on the 20th October 2020 Mr. Kelly requested Ms. Moran to book her annual leave. In the same conversation Ms. Moran questioned Mr. Kelly regarding her bank holiday entitlements. As Ms. Moran was a salaried employee provision had been made for Ms. Moran to take a paid day off on the day of the public holiday to satisfy her entitlement. Ms. Moran informed Mr. Kelly that she had not done this for five public holidays. This was the first time that Mr. Kelly was made aware of this. Nonetheless, to correct this Ms. Moran received five additional days of pay.

On the 9th November 2020, Mr. Kelly again requested that Ms. Moran forward her proposed dates for her outstanding week of annual leave. As all employees were aware that it was not permitted to take annual leave during the month of December, Mr. Kelly was keen that Ms. Moran would receive her outstanding week of annual leave in November.

On the 16th December 2020, as Ms. Moran had not yet taken her outstanding annual leave, Mr. Kelly asked Ms. Moran why she had not done so. She stated that she wanted to be paid in lieu of taking her annual leave. Mr. Kelly informed Ms. Moran that this would not be possible and that she would have to take her annual leave. On the 18th December 2020 it was proposed to Ms. Moran that she take annual leave from the 4th to the 10th of January 2021. Ms. Moran rejected this proposal stating that she did not want to carry her annual leave into 2021. She again requested that she be paid in lieu of taking her annual leave. Mr. Davey did not agree to this and stated that as Ms. Moran had rejected the proposed dates that the only other option was for her to take her annual leave over the Christmas period. This meant that Ms. Moran would begin her annual leave on the 23rd December 2020 and return to work on the 3rd January 2021. Ms. Moran agreed to this.

On the 22nd December 2020, Ms. Moran sent Mr. Kelly a text message stating that she wished to work up until Christmas eve. Mr. Kelly replied stating that this was not possible as she had to take her annual leave entitlement.

On the 23rd December 2020, Ms. Moran arrived into the store. Ms. Hargadon thanked Ms. Moran for coming to work but instructed her to go home as she was on annual leave. On the 31st December 2020, Ms. Moran sent Mr. Kelly a text message wishing him a happy new year and stating that she would see him in work on the 4th January 2021. As the agreement was that Ms. Moran would return to work from her annual leave on the 3rd January 2021 Mr. Kelly asked Ms. Hargadon to contact Ms. Moran with her roster and a return date of the 3rd January 2021. After receiving this communication and roster from Ms. Hargadon, Ms. Moran came to the store to speak with Mr. Kelly about her roster. Mr. Kelly informed Ms. Moran that the roster was done in conjunction with Mr. Davey and that it must be adhered to. For context, the roster required that Ms. Moran work shifts that included her closing the store in the evening. This shift was from 11am to 9pm. In previous conversations in September 2020 it was explained to Ms. Moran that as she was a member of the management team she was required to be flexible and available to close the store and manage the evening employees when required. The Company gave Ms. Moran a period of time from September 2020 to December 2020 to make the necessary arrangements to allow for her to be able to do the lockups. As a result, Ms. Moran agreed to these shifts and she was informed that she would be expected to work the roster. In January 2021 when these shifts commenced for Ms. Moran, she then  raised issues with the 11am to 9pm shift. She outlined that she was not available to do this rostered shift because she had to administer medication to her father at a set time each day that fell during the rostered shift of 11am to 9pm.

On the 2nd January 2021, Ms. Moran sent Mr. Kelly a text message stating that she had tried to call Mr. Davey to discuss the possibility of doing split shifts so that she would be able to administer the medication to her father and lock up the store. Mr. Kelly replied stating that the business had been fair and flexible but that they required Ms. Moran to work the rostered shifts. Mr. Kelly further requested that Ms. Moran confirm that she would work the roster. Ms. Moran replied that she would not leave her father without his medication and would only do split shifts.

On the 3rd January, Ms. Moran came to the store at 9am to speak with Mr. Davey. Ms. Moran requested that Mr. Davey roster her week so that she did not have any lock ups. Mr. Davey explained that this would not be possible due to the needs of the business. Ms. Moran began to argue and Mr. Davey suggested that they continue the conversation at 11am when Ms. Moran was rostered to begin work. Ms. Moran did not come to work at her rostered time of 11am. Mr. Kelly sent Ms. Moran a text message at 11.50am asking where she was. Ms. Moran stated that she did not come to work because she could not do a split shift.

On the 4th January 2021, Ms. Moran arrived to work at 9am instead of her rostered start time of 11am. Mr. Kelly and Ms. Hargadon met with Ms. Moran and addressed her actions of the day before (i.e. not coming to work for her rostered shift). Mr. Kelly stated that the business had been flexible and that she had agreed in a previous meeting that she would work the roster. Ms. Moran stated that due to her situation at home, she would not work the shift of 11am to 9pm. She stated that she was responsible for her father’s medication and that no job was worth his health. Ms. Moran stated that she would only complete lockups if she could work a split shift on those days. Mr. Kelly explained that split shifts would not work due to the demands of the business during the hours when she would be absent during a split shift. Ms. Moran then stated that she was resigning. Mr. Kelly stated that he would not accept it as she was a valued member of the team. Ms. Moran stated that she had made up her mind and that her father’s health was her priority and that she had no help. Mr. Kelly asked could Ms. Hargadon help her find some support and help. Ms. Moran refused this offer. She stated again that she was not going to work the lockup. Mr. Kelly informed Ms. Moran that if she did not work the roster as scheduled that the Company may have no other alternative than to invoke internal procedures. Ms. Moran reiterated that she was not going to work the roster.

Later that day Ms. Hargadon spoke to Ms. Moran and again offered to help her source some support to help with her father. Ms. Moran again refused this offer.

On the 7th January 2020, Ms. Moran submitted a letter of resignation via email at 12:12am stating that her resignation would be effective from 7pm that day. That morning, Ms. Hargadon spoke to Ms. Moran regarding her resignation. Ms. Hargadon explained to Ms. Moran that this was not the outcome that the Company wanted and urged her to reconsider her decision. Ms. Moran stated she had her mind made up.

In relation to Ms. Moran’s complaint of bullying it is assumed that this is related to the respondent urging Ms. Moran to take her annual leave. The respondent worked with Ms. Moran to try to come to an arrangement that worked for both her and the need for her to take some time off.

Furthermore, in relation to the changing of Ms. Moran’s shifts, this was discussed with Ms. Moran. It was also explained to Ms. Moran why this change in shifts was necessary. Ms. Moran was then given ample time to allow her to make the necessary arrangements so that she could work these shifts. Ms Moran’s contract of employment requires her to be flexible in her position and as such flexibility relating to the lockup shifts was required of her. Nonetheless, Ms. Moran refused to work the rostered shifts. There is no question of bullying here.

Ms. Moran had previously informed the Company that she intended to resign in both 2018 and 2020. In relation to her resignation in 2020, the Company asked Ms. Moran to reconsider her resignation and to allow the Company the opportunity to resolve the reasons for her resignation i.e. workload, salary, working evenings. Ms. Moran did not resign on this occasion and as such the respondent worked with Ms. Moran to resolve all issues that were raised. Therefore, Ms. Moran knew that the Company would take the same approach in relation to her most recent resignation but instead she decided to proceed with her resignation without exhausting the Company’s internal procedures and processes.

The Company made every effort to try to support Ms. Moran and her personal situation by offering to help her find some support for looking after her father. Ms. Moran refused this help and refused to work her rostered shift. Ms. Moran made the decision herself to resign and did not attempt to resolve this situation further by invoking the Company’s internal procedures or by accepting the help offered.

CA-00042010-002 Hours of Work

Section 15 of the Organisation of Working Time Act 1997 specifies that

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed— 

(a) 4 months, or….

The duty of compliance with the Act rests on the employer and not the employee.  Therefore, liability rests with the employer even in circumstances where the employee worked excessive hours or omitted to take breaks willingly.  The Act provides that an employee shall not be permitted to work more than an average of 48 hours per week.  The obligation is on the employer to ensure that excessive hours are not worked.  In Svodboda v IBM Ireland, DWT0818, the complainant worked more than 48 hours even though she was instructed by her employer not to do so.  However, because of the bona fide efforts of the employer to deal with the situation the contravention was considered by the Labour Court to be technical in nature.  In the current case I believe that the respondent did not require the complainant to work in excess of the permitted hours but did not adequately monitor the attendance pattern in order to ensure that she did not do so.  The respondent in evidence has stated that on a number of occasions they brought it to the attention of the complainant that she should not work in excess of 45 hours per week.  Clearly, therefore, the respondent was aware that the complainant, albeit through her own volition, was working in excess of the permitted hours. 

The complainant provided evidence of the hours she worked from February 2020 until September 2020 and the averages exceeded the permittable hours under the Act.  The respondent says that the complainant took time off during the day to attend to caring responsibilities that she had, however the complainant gave evidence that she worked back these hours on every occasion.   I therefore find that this complaint is well-founded.

The complainant in evidence at the hearing accepted that she received her holiday entitlements under the act.

CA-00042010-004 Unfair Dismissal

The complainant alleges that she was constructively dismissed.  Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

In this case the complainant alleges that she had a verbal agreement to work a split shift thereby ensuring that she could continue with her carer obligations.  Secondly, she asserts that in refusing to allow her work a split shift that the respondent acted so unreasonably that she was justified in leaving on the basis of constructive dismissal.

The complainant contends that she was constructively dismissed.  It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and secondly, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation. 

There is nothing in the written contract that entitled the complainant to work a split shift.  Furthermore, the evidence of the respondent is that there was no verbal agreement to that effect. I therefore, find that there was no evidence of a breach of contract which could give rise to a justified repudiation and therefore the focus must be on whether or not the conduct of the respondent met the test of being so unreasonable that the complainant had no alternative but to resign.  In this regard the extent to which appropriate grievance procedures were available to the complainant, and used to resolve her issues, is a key question in determining whether or not the respondent behaved unreasonably.

From the evidence provided it is clear from her perspective, that it was essential for the complainant to work a split shift in order to provide the existing level of care to her relative.  I note that the respondent considered to what extent the flexibility sought could be given without impacting on her role, before deciding that it was not possible.  I note also that the respondent offered to assist in accessing state support for the complainant to assist in her role as a carer.  A grievance procedure existed within the respondent’s organisation and the complainant was aware of this procedure.  She did not choose to use this procedure.  In John Travers –v- MBNA Ireland Limited UD720/2006 the Labour Court decided as follows;

“We find that the claimant did not exhaust grievance procedures made available to him by the respondent and this proves fatal to the claimant’s case… In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”

The complainant was aware of the grievance procedure and did not use it and did not show that the procedure was unfair.  I conclude therefore, that the complainant has failed to show that a dismissal occurred and was not unfairly dismissed.

CA-00042010-002  The complaint is well-founded and I order the respondent to pay the complainant €3000 in compensation.

CA-00042010-004  The complainant was not unfairly dismissed.

Breach of the Organisation of Working Time Act – weekly hours.  Unfair Dismissal – constructive dismissal.  Failure to use Grievance Procedures.