Complainant

Respondent

Parties

Raymond  O'Neill

Flairline Fashions T/A Pamela Scott

Representatives

David Condron BL instructed by W.X. White Solicitors

Paul Gough, Beauchamps

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-00041949-001

13/01/2021

The Complainant stated that he commenced employment with the Respondent in August 2010 as a Graphic Designer and was paid a weekly wage of €771. He stated that he left his position on 15 December 2020 under duress and as a direct result of the conduct of the Respondent.

The Complainant stated that on 20 November 2020 he gave the Respondent four weeks’ notice of his intention to terminate his employment. He added that he was asked if the Respondent could offer him a package to stay but he declined to do so. He was subsequently informed on Thursday, 26 November by Scott Barron, Director, that he would not be getting the three bonus payments he was due as a result of store closures despite the fact that his bonus related to online sales targets only. The Complainant made it clear that he was unhappy with this decision and wanted it reversed. He was subsequently informed by Scott Barron on Thursday, 10 December that his bonuses would be now be paid to him.

At lunchtime on Monday, 14 December he stated that he took a damaged sock set with the intention of taking it home to see if it was a suitable Christmas gift and that this was witnessed by Scott Barron. He asserted that it was not an unusual practice for him to take stock home and to return it later and added that this was known to the Respondent. At approximately 3pm he was called into the boardroom by Richard Barron, Director, wherein it was suggested that the payment of his bonus would be spread over a few months. Further to this, at 6pm, as he was leaving for home, he was approached by Scott Barron and asked to go the boardroom where Richard Barron was also present. At this meeting, he was accused of stealing the sock set as well as over fifty items of company property. He stated that a threat was also made to contact his new employer to damage his reputation. As a direct result of Richard and Scott Barron’s threatening behaviour and in a state of distress and shock, he was coerced into writing a letter, a copy of which he did not receive, stating that he took an item without permission as they repeatedly threatened to call the Gardaí stating that he would be arrested in front of all staff present. Once he had written this letter, Scott Barron walked him out of the building.

He was invited to a second boardroom meeting on the following day, 15 December, on his own and once again attended by Scott and Richard Barron. At this meeting, he was told by both Richard and Scott Barron to write a note resigning from his employment and foregoing all of his payment entitlements in full or the Gardaí would escort him out of the building in front of all staff. As a direct result of their threat to contact the Gardaí, he stated that he felt extreme stress and was forced to write a resignation letter foregoing all of his payment entitlements. Once he wrote this letter, Scott Barron walked him out of the building without giving him the opportunity to collect his personal belongings and he was not allowed to work out his notice to 23 December, as per the terms of his contract which would have been his preference.

The Complainant also highlighted that the actions of the Respondent did not adhere to the provisions of their own Employee Manual which is a procedural handbook and highlighted that it was not presented to him in its manual form during the meetings dated 14/ 15 December 2020 where multiple allegations of a serious nature were repeatedly directed towards him.

The Respondent asserted that the Complainant stated in his complaint form that on 14 December he took "a damaged sock set with the intention of checking if it is a suitable Christmas gift witnessed by Scott Barron. This is not an unusual practice for me to take stock home and return it later." The Respondent stated that it was untrue that Scott Barron was aware or agreed to the Complainant taking the goods and highlighted that the Complainant did not ask for permission to take the goods home. According to Mr Barron when he entered the office in which the Complainant worked on 14 December 2020, the Complainant visibly jumped and it was clear to Mr Barron that he had just placed something in his bag. Mr Barron was suspicious but did not say anything to the Complainant and entered into a conversation with him to give him an opportunity to explain what had just happened, however at no point did the Complainant mention that he had taken any goods, never mind ask permission to take the goods. The Respondent highlighted that employees do sometimes take items home, but only after they have asked one of the Directors before doing so and that it is certainly not normal practice for employees to take items home without asking for permission from management.

The Complainant had still not disclosed the removal of the items or requested approval for the removal of the items by the time he was leaving at the end of the day and so Scott Barron called him into his office and confronted him about what he had seen. The Complainant admitted that he "took a chance" and put the sock set into his bag. He also revealed that in recent years he had ordered approximately 30 items into the store which he then brought home for his girlfriend to consider, however he said that on each occasion that she had decided that she did not like the item so he returned it. In his ten years working for the Respondent, the Complainant said that he had never purchased any items from the Respondent. The Directors did not find this credible and queried him further and eventually the Complainant conceded that he had also taken a coat with a value of €159.99. He apologised and asked if there was any way that he could redeem himself. He signed a note admitting to taking the items.

The following day, 15 December 2020, he was asked to attend a meeting with the Directors again. At this stage he had admitted to stealing two items and the Respondent stated that all trust and confidence had been broken. However in recognition of his ten years’ service, and as he was already due to leave within 10 days, the Respondent decided to give the Complainant a chance and advised him that if he resigned then that would be the end of the matter. It was explained that the alternative was to commence a formal disciplinary process and possibly involve the Gardai. The Complainant opted to resign and he was advised he could return to the office the following day to collect his personal property.

THE LAW

The Act at Section 1(b) defines constructive dismissal in the following manner

“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,”

ANALYSIS

It is for the Complainant to establish that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable for him or her, to terminate the employment relationship.

Contract Test

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as 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 discharged from any further performance.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed.

Reasonableness Test

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment.  This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the employee so unreasonably that the Complainant felt that he had no choice but to resign. Specifically, the Complainant has asserted that he felt pressurised into leaving his employment against his will to avoid the matter being reported to the Gardai by the Respondent.

I note that In Fell v H. Williams & Co. Ltd.  (UD 518/82)Fell was employed by the respondent as a checkout operator. A dispute arose over Fell’s practice of keeping single pound notes in a drawer underneath the cash till. She was warned not to use that drawer in the future. At a later date Fell found that £40, which she had put into the un-authorised drawer, was missing. She told the store manager that the money had been taken from the unlocked drawer during her lunch break. Fell was interviewed about the matter by the personnel manager and the area supervisor. There was a dispute as to what happened at that meeting. According to Fell, she had been given two options, either to leave or be dismissed. Her employer stated that they had given her the option of achieving normal cashier standards or resigning. In the event Fell resigned. The Tribunal noted they the whole conduct of the interview, in the absence of anybody to represent Fell, was likely to produce the result it did. By an application of the reasonableness test, the Tribunal ruled that it was appropriate for Fell to resign and accordingly they ruled that she was constructively dismissed.

Similarly in Simpson v The Finglas Adult and Child Centre (2009), (Coveney, Muireann (2010). Constructive Dismissal, Successful Claims and the EAT. 7(4) IELJ 99) the complainant was successful in her action for constructive dismissal. Following a workplace incident, the complainant was informed that if she admitted a breach of company protocol she would not face the sanction of dismissal. On that basis, Ms Simpson made a full admission. The following day, she was informed that her only option was to resign (with some benefits) to avoid being dismissed for misconduct. The Circuit Court upheld the EAT's finding that undue pressure to resign was put on Simpson by her employer and the union and the Court ordered that Simpson be re-engaged by the respondent in her previous position.

More recently, the Labour Court stated in the matter of Patrick Markey vs Boylesports Unlimited Company UD/19/190 that “it was not unreasonable for the Complainant….. to form the view that he had been pressurised into leaving his employment against his will” in their finding that the Complainant was unfairly dismissed.

I note that in the within case the Complainant was called into the Respondent’s boardroom on 15 December 2020 and was told that he should resign to avoid having the matter reported to the Gardai. I also note, crucially, that the Complainant was not afforded any time to reflect on his resignation, was not given the opportunity to take any advice and was also not accompanied at the meeting. I find therefore that undue pressure was placed on the Complainant to resign.

In light of the foregoing, I find that the Complainant was unfairly dismissed.

THE LAW

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid

ANALYSIS

Given that the Complainant was working his notice with the Respondent at the time of the unfair dismissal and had secured alternative work elsewhere, I consider that compensation is the appropriate form of redress.

Following a review of the Regulations made under section 17 of the Act, I do not find that the bonuses which the Complainant claims he was due constitute remuneration under the Act.

Section 7(3) of the Act further states that:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973,”;

Given that the Complainant was working his notice and was voluntarily due to leave the Respondent’s employment the following week, I do not make any award for the loss of his rights under the Redundancy Payments Acts, 1967 to 1973.

In light of the foregoing and given that he lost eight days pay (1.6 weeks’) as a result of the unfair dismissal, namely the remainder of his notice period from 15 -23 December, I make an award of €1,233.60 in accordance with section 7 (1) (c) (i) of the Acts.

Constructive dismissal;