Complainant

Respondent

Parties

Nicola McDonnell

Irish Whiskey Museum Ltd

Representatives

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-00047076-001

09/11/2021

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

CA-00047077-001

09/11/2021

At the outset of the hearing, CA-00047077-001 was withdrawn by the Complainant as it was a duplicate complaint.

The Complainant commenced employment with the Respondent in November 2011.  She was paid a gross weekly amount of €1,385 per week and worked 40 hours per week. The Complainant is claiming that she had to leave her job due to the conduct of her employer (Constructive Dismissal). She left her employment on 1 November 2021.  A Complaint Form was received by the WRC on 9 November 2021. An in-person hearing of the case took place on 16 August 2022.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.

Name of Respondent

In her Complaint Form the Complainant named Extreme Event Ireland Ltd, trading as the Irish Whiskey Museum as the name of the Respondent.  It became clear at the hearing that this was incorrect and that the correct name of the Respondent entity is the Irish Whiskey Museum Ltd. This was agreed by both parties.

Section 39 of the Organisation of Working Time Act 1997 provides that the name of the Respondent on a complaint referral form can be amended in the following circumstances:

(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

( a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

( b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

In making my decision I am guided by the majority determination of the Employment Appeals Tribunal in Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011) where the Tribunal considered its powers under Section 39 of the Organisation of Working Time Act 1997 and reached the following conclusion:

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight.”

It is therefore clear that in order for an Adjudication Officer to grant leave to the Complainant to change the name of the Respondent, it must be established, firstly, that there has been inadvertence on the part of the Complainant in terms of the failure to identify the correct Respondent when the proceedings were instituted, and secondly, that such leave to amend the name of the Respondent should not result in an injustice being done to the proposed Respondent.

In considering this issue I am satisfied that the Complaint Form submitted by the Complainant contained a variation of the name of the company that employed her. I accept that in seeking to record the legal name of the Respondent employer on this form that the Complainant through inadvertence failed to cite the precise legal name of this entity. I am satisfied that the actual employer was fully aware at all material times of the herein proceedings.

I am also satisfied that the granting of leave to amend the name of the Respondent does not result in an injustice or prejudice to the proposed Respondent. The correct Respondent attended the adjudication hearing, they had prepared a submission for the hearing, they took full part in the proceedings.

Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the Complainant to proceed with this claim in all the circumstances. Therefore, I find that the misstatement of the Respondent’s name on the Complaint Form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997.

The Complainant provided a detailed written submission. This submission contained copies of emails pertinent to the case.

The Complainant submits that at the time her employment terminated she had been the General Manager of the Irish Whiskey Museum for three years. During this time, she had worked tirelessly to build up the business.  However, in the run up to her decision to leave the company she found the behaviour of the owner to be intolerable and that he had repeatedly undermined her position.

The Complainant submits that since the museum closed on 13 March 2020 due to Covid, she has endured intolerable treatment by the Respondent which has made it unbearable for her to continue.  The Complainant submits that she has been harassed, bullied, undermined, and largely excluded from what was happening in the company since July 2020.

The Complainant submits that throughout the period the museum was closed due to Covid she continued to carryout numerous functions on behalf of the Respondent. Although on PUP throughout the time she was very conscious of the need to maintain the reputation of the museum and maintain the strong relationships she had built up with stakeholders.  However, there were several actions during this period which led her to leaving her job.

The Complainant submits that when the Respondent announced his decision that the museum would not reopen until March 2021, he should, notwithstanding the fact that she was on sick leave at the time and had indicated she did not want to be contacted while she was out on sick leave, have contacted her to discuss the decision or at the very least let her know about such an important decision.  The Complainant gave direct evidence at the hearing under Oath. Regarding this matter she stated that the Respondent contacted other employees by WhatsApp but not her, undermining her position.

The Complainant submits that while attempting to organise a virtual tasting event for a German company following a disagreement with the Respondent, he changed the password of her email account thus preventing her being able to contact the customer. In her direct evidence the Complainant stated that being locked out of her account caused her embarrassment as she had to ask another company to assist her in the organisation of the event. She then refused to give back the whiskey she had obtained for this tasting until her email was restored; she had to send a solicitor’s letter to this effect.  When her email was restored the Respondent sent someone to the Complainant’s home to pick up the whiskey, the Complainant found this embarrassing.

In another incident the Complainant submits that during a discussion with the Respondent about the non-payment of a supplier, the Respondent advised her that he was giving her an official warning for not attending a virtual trade show. The Complainant submits that she has never received any paperwork regarding this warning, nor any follow up on it.  Nonetheless, this this caused her a lot of distress at the time.

In November 2020, the museum’s Operations Manager was made redundant without, the Complainant submits, any consultation with the Complainant. Again, this undermined her role. In her direct evidence the Complainant stated that the Operations Manager had been dismissed without any consultation with her even though the Respondent had consulted with a director of the company.

The Complainant submits that in May 2021, she requested a meeting, with certain terms, with the Respondent, which was turned down.  The Respondent did not offer an alternative. In her direct evidence the Complainant stated that she wished to meet with the Respondent to discuss a possible re-opening of the museum but she wanted a third party to be present, when the Respondent would not agree to this the Complainant was at a loss as how she was going to reopen the museum.  She felt undermined in her role.

The Complainant submits that the locks to the museum were changed thus preventing her gaining access to the museum unless in the company of a key holder.  She submits that she was told by the Respondent that she would not be allowed enter the museum unaccompanied. In one email to the Complainant, dated 5 August 2021, the Respondent wrote, inter alia, “Do not try and enter the museum again without permission.”

In her direct evidence at the hearing, the Complainant stated that whenever she wished to enter the museum during this period, she had to seek permission from the Respondent and was accompanied when she was in the museum by an appointee of the Respondent. The Complainant believes this person was instructed to monitor her while she was in the museum; she found this humiliating and embarrassing for other employees. On one occasion when clients were visiting, she had to ask someone to let her into the museum, she felt ridiculed.

The Complainant submits that on 5 August 2021, the Respondent wrote to her asking her why she was not looking for other work; this correspondence left the Complainant feeling very vulnerable and uncertain about her future. In her direct evidence the Complainant stated that by this time the attempts to get rid of her were getting more overt, she felt harassed, excluded, and undermined.  The Complainant referred to another forum where she was asked, by the Respondent’s representative, in front of a judge, why she was not looking for work.

The Complainant submits that on 1 November 2021, she sent an email to the Respondent requesting redundancy.   She received a letter back on 8 November 2021, agreeing to pay the redundancy and outlining how much she would get paid.  She submitted a constructive dismissal complaint to the WRC on 9 November 2021, before the redundancy was paid. The WRC notified the Respondent on 11 November that there was a constructive dismissal claim against him and the Complainant submits he will now not pay her a redundancy lump sum she is due, her two weeks outstanding holiday pay or the two weeks’ notice payment she is owed as a result.  Regarding this matter, when the Complainant queried when she would receive her redundancy payment, the Respondent replied to the Complainant by email on 25 November 2021, stating that “Firstly, you have not provided the passwords for the laptops you left back. When should I expect them? And secondly, you cannot claim unfair dismissal and also claim redundancy.”

In her direct evidence the Complainant stated that she has not received a redundancy payment, her notice payment, or her outstanding holiday pay.

In conclusion, the Complainant submits that since July 2020, she has felt harassed, threatened, and abused in her position.  She has been humiliated by the Respondent’s treatment of her as an employee of the company.

Regarding mitigation of loss, the Complainant has found other employment.  Initially this was cover for maternity leave starting in late December 2021. After the expiration of the maternity leave cover contract, the Complainant was offered and accepted a permanent role with the same employer.

The Respondent provided two written submissions.

Submission dated 6 December 2021.

In this submission the Respondent submits that the that he was surprised that the Complainant submitted a constructive dismissal claim when she did, as everything she refers to in her complaint related to more than a year ago, yet she was happy to stay in her position during all the intervening time when there were no incidents.

Regarding the virtual event for the German company the Respondent submits that having given the Complainant permission to enter the museum to take whiskey for the event, (the museum was fully closed at the time), the Respondent found out that no one had been instructed to invoice the company and when he asked the Complainant where the money was going to, she refused to answer the question. The Respondent submits that he eventually had to threaten that he would go to the Gardai to get back the whiskey the Complainant had taken from the museum.  The whiskey was, according to the Respondent, “reluctantly” returned.  The Respondent submits that “because of her actions the Complainant’s email was cut off to avoid her doing any more reputational damage to the museum.”  When the whiskey was returned her email was once again opened to her.

Submission dated 11 August 2022

The Complainant submits that the museum was closed until March 2022 due to COVID. The Complainant constantly asked the Respondent to reopen the museum, but this was not possible and in hindsight it was the correct decision. The Respondent does not believe that his behaviour during this period had anything to do with the Complainant resigning from her position.

The Respondent submits that during the Complainant’s employment in the museum that he has been more than supportive of her role in difficult circumstances.

The Respondent submits that he never put the Complainant under pressure to resign.

The Respondent submits that this is a personal issue and nothing to do with the museum, “that if she says she could not work with me, it has to be similar in nature from the employer to the employee where the situation is mutual.”

The Respondent gave direct evidence under Oath at the hearing.  He explained that the pandemic brought huge uncertainty to the tourism industry.  The museum had to close as the pandemic took hold and no one was allowed into the building on their own.

Regarding the German virtual tasting the Respondent stated that he had concerns as to how the whiskey to be used was going to be paid for; he got no answers from the Complainant. The Complainant then changed the organiser of the event, unbeknownst to the Respondent.  The Respondent stated that he had to threaten that he would get the Gardai to get the whiskey back from the Complainant. She did give back the whiskey, reluctantly according to the Respondent.

The Respondent stated that he had changed the Complainant’s email after the virtual event.  He had warned the Complainant that he was going to do this unless he got the whiskey back.

The Respondent stated in direct evidence that he had not tried to get rid of the Complainant. In relation to the questioning of the Complainant about getting another job by the Respondent’s representative in front of a judge, the Respondent stated that was just one person asking about the situation.

The Respondent stated that he was not sure if the redundancy payment, notice payment and holiday pay had been paid to the Complainant.

In direct evidence the Respondent stated that he thought the parties might be able sort out their problems, that the Complainant had done a very good job as General Manager, but the reality is they could not work together and that this was not going to happen.

In concluding, the Respondent stated that it was always open for the Complainant to come back to work and that he was sorry this had happened.

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 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 in claims of unfair dismissal, the definition firmly places the onus/burden of proof on the employee to show that the resignation was justified. The case law regarding constructive dismissals affirms that an employee must have firstly exhausted all alternative avenues before repudiating his/her contract of employment. However, there are situations where employees have been found to be justified in resigning with immediate effect e.g., where there has been a fundamental breach of contract, alternative avenues are not available to the employee and/or grievances raised are unaddressed.

In this case many of the facts are in dispute and there is disagreement whether the Complainant was justified in resigning in the circumstances.  My role is to objectively determine, based on the evidence adduced, whether the Respondent behaved in such a way that amounts to a repudiation of the employment contract, such that the Complainant was entitled to resign with immediate effect.  In this respect, based on the evidence presented, I make the following findings on the balance of probabilities:

(i) The evidence adduced by the Complainant was such as to prove that the working relationship between herself and the Respondent had broken down entirely in the period July 2020 to her resignation in November 2021.  The evidence of this break down is clear in emails sent by the Respondent to the Complainant.  For instance, in an exchange of emails (11 March 2021) on the matter of the issuing of an official warning, the Respondent stated, “If you can’t work with other staff……. then you can’t work in my organisation. Be very clear about that so be very careful.  I have more than enough of your actions to have you gone permanently from the museum.” A later email of 5 August 2021 contains the following, “As the Museum won’t be open for the foreseeable future, I find it difficult to see why you aren’t looking for other meaningful work as you are qualified in other areas.  Surely welfare would like to see you back working? Any reasons why you’re not meaningfully looking Nicola?”  These emails clearly demonstrate that the Respondent no longer wished for the Complainant to remain as an employee of the museum and that she should move on.  Such pressure is unacceptable in the employer-employee relationship and undermined the Complainant greatly.

(ii) While other incidents presented by the Complainant and outlined above, may not on their own have justified the Complainant’s resignation, taken collectively they strongly support the contention that the Complainant’s position was untenable.  The removal of access to email, the requirement to seek permission to access the museum and then be accompanied for the entirety of the visit, the issuing of an “official warning” with no due process, must have been very difficult for the Complainant to handle.  Her position as General Manager was undermined by the Respondent in many ways.

(iii) The evidence adduced by the Respondent was not sufficient to rebut the claims made by the Complainant.

In conclusion, I find that due to the actions of her employer it was reasonable for the Complaint to resign from her job. I am cognisant of the fact that there were other issues at play during this period, however the context does not relieve an employer of their responsibilities in respect of the employment relationship.

Section 7 (c) (i) of the Act states, “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,”.

I find this was a constructive dismissal and taking into account all the circumstances I find an award of €22,540 is just and equitable.

The Complainant was unfairly dismissed.  I award the Complainant €22,540.

Intolerable, employer/employee relationship, constructive dismissal.