Complainant

Respondent

Parties

Aderana  Dunne

 Ballyvolane Pharmacy Limited

Representatives

Valerie Morrison, Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052749-001

09/09/2022

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

CA-00052749-002

09/09/2022

 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052749-003

09/09/2022

The complainant worked as a Pharmacy Technician occasionally as holiday cover for the respondent before commencing on a permanent contract from 19th November 2018. In or about May 2020, the complainant notified the respondent of difficulties she was encountering with another staff member. She subsequently took time off. She was on annual leave and then sick leave from August 2020 up to the date she terminated her employment in March 2022.

The complainant alleges that she was constructively dismissed and pushed out of employment due to her earlier complaint and arising from a proposal that she return to a Sales Assistant role.

The complainant alleges that that there has been a breach of the Terms of Employment (Information) Act 1994 as she was never issued with an accurate or signed contract of employment.

Although the complainant had initially made a complaint under the Minimum Wage Act, 2000, she clarified in the wording of the complaint form and in her submission that this complaint related to payment of wages as per her employment contract. As the respondent was on notice of the details of the complaint and is not prejudiced in any way, I decided to hear the complaint under the Payment of Wages Act 1991.  

Summary of Complainant’s Evidence

The complainant outlined the background to her employment with the respondent and that she enjoyed the work in the Pharmacy. On 15th May 2020, due to previous incidents with a staff member on her shift, she made a verbal complaint to the manager, Mr Wallace. She was also in contact with a few colleagues in confidence as to the behaviour of this staff member prior to reporting same to Mr Wallace.

She then took time off, initially as annual leave and then as sick leave. She was surprised that even though she was on leave that she was still requested to work on Saturdays. She was advised by her GP that she was not fit to attend work and remained on leave for several months. As there were sick certs outstanding, these were submitted to the manager when requested. There was some contact with the manager as to when she would be returning to work. Some meeting dates were suggested by the manager, and she informed him that she could not attend a meeting on 23rd November 2020 due her daughter’s illness. She was never asked to attend a meeting after November 2020.

During a discussion on a possible return to work, there was a proposal that she could return to a customer service role. She felt that this was a demotion and that it was related to the reporting of the earlier complaint about another staff member. She terminated the contract on 7th March 2022 and requested any outstanding payments of holidays accrued.

On the employment contract issue, she outlined that she had sought clarifications of her contract on a few occasions as some of the details in the contract that issued in September 2019 were incorrect. The contract remained unsigned by both parties as the clarifications sought were not finalised.

On the unpaid wages issue, she gave evidence that her contract stated €13.75 and that she was only paid €13.70 for a few months before she was on long-term sick leave.

The complainant was cross-examined by the respondent’s representative on the flexibility afforded to her by the respondent when she needed to change shifts due to an urgent childminding issue which arose in February 2020. She was questioned on why she did not follow up on the complaint and give details of dates and times of the incidents with the other staff member from May 2020. She was asked whether she had specifically requested that the issue remain confidential. She was asked why she did not follow up on the issue after getting advice.

She was questioned on why she did not object in writing to the customer service role and why she did not inform the manager that she would be resigning due to this proposal.

She was questioned on why she did not make a formal grievance complaint prior to resigning.

The complainant outlined her efforts to find alternative employment and her success in finding a new job within weeks.  

Summary of Mr Wallace Evidence

Mr Wallace outlined his role as owner and manager and how he came to know the complainant through another pharmacy business.  He said he should have issued the contract sooner although he did issue it within days of the request by the complainant. He clarified the history of the hourly rate of pay. He said the agreed rate was €13.70 and the €13.75 in the contract was an administrative error when the contract was written up by the HR consultant.

He gave evidence of how he facilitated the complainant with a change of shift in February 2020. He outlined the changes to a two-team roster in March 2020 due to COVID.

He gave details of the meeting of 15th May 2020 when the complainant made a verbal complaint and that it was the complainant who requested confidentiality. He did not check CCTV as he was given no dates or times of the incidences to follow up on. At the May 2020 meeting he requested that the complainant consider documenting the complaint. He gave evidence that the issue was never raised with him subsequently. He said he was concerned about the issue, and he did take some steps to ensure both staff did not work on the same shift.

He was aware that the complainant applied for two weeks leave sometime after the complaint was made. He granted this as he understood that the complainant was under pressure with childcare and he did not link the absence from employment with the earlier complaint. This leave was then extended as sick leave. He requested outstanding medical certs which he then received.

He gave evidence that the customer service role discussed prior to a return to work would be on the same pay terms. If the complainant was not interested, then it would be covered by the rotation of all staff including the complainant. He confirmed that he had sought to meet the complainant to discuss a return to work although the complainant was not available. He said the complainant never raised the earlier complaint subsequently. When he received the notice of resignation, he replied wishing the complainant well.

Mr Wallace was cross-examined on how the pharmacy was managed and the errors contained in the contract. He was questioned on why the complainant was asked to cover Saturdays when she was on approved leave. He was questioned on the proposal of her return to a customer service role and whether he was satisfied with steps taken for the welfare of his staff. He confirmed that the complainant was a good employee.  

Summary of Ms O’Donovan’s Evidence

Ms O’Donovan described her role as Pharmacy Technician and her involvement in rostering. She was aware of the incidents with another staff member as this was disclosed to her by the complainant. At the meeting on 15th May 2020 when it was reported to the manager, she confirmed that the complainant did not want to proceed with documenting issues and wanted the issue kept confidential.

She gave evidence of the background and her understanding of the customer service role.

Summary of Ms Murray’s Evidence

Ms Murray outlined her role of Pharmacy Technician. She gave evidence that she was aware of the incidents through text message from the complainant and was requested to keep it confidential.

CA- 52749-002 – Complaint under Unfair Dismissal 1977

The definition of a constructive dismissal under the Act is:

 “dismissal”, in relation to an employee, means—

(a) -

(b) 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 the fact of dismissal is in dispute, the onus of proof is on the complainant to prove and justify the reasons for resigning from the employment.

The established test for constructive dismissal is the ‘contract test’ and ‘reasonableness test’.

Contract Test

The contract test concerns whether the employment relationship as agreed has been honoured and if not whether a breach was so serious that it frustrated the relationship between the parties beyond repair. In summary, the complainant alleges that by not investigating the incident reported in May 2020 that this was a breach of a duty of care to her. Furthermore, when there was a proposal to return to work in a customer service role that this was a serious breach of contract. The complainant raised further issues as to how she was treated by the respondent.

The evidence from the respondent was that even though there was a complaint in May 2020, he was requested by the complainant to keep this matter confidential. This request of confidentiality was confirmed in evidence by other witnesses and set out in a text message. Mr Wallace’s evidence was that he was concerned with what was reported to him and indicated to the complainant that details should be set out in writing. The complainant did not set out any details in writing.

Although the employment contract was not finalised, it did set out the grievance procedure along with bullying & harassment procedures. The grievance procedure allows for verbal complaints. The bullying & harassment procedure sets out more detailed requirements which includes setting out the details of the complaint. At the end of page 16, the procedure states ‘A meeting will be arranged with you to clarify and formally record the complaint in writing.’ At the beginning of page 17, it outlines that a manager may approach a party on behalf of a complainant to resolve as informally as possible. This did not occur, as the complainant sought confidentiality which prevented this step.

There was no evidence of any follow-up on the issue by the complainant in correspondence after May 2020. Even though the complainant went on annual leave and then sick leave, there were no details provided in any medical reports, documents, or even verbally which referred to the earlier complaint. Evidence emerged during the hearing that the respondent did take some safeguarding steps at the time.

Change of Role

On the proposed change of role on return from sick leave, there is conflicting evidence as to whether this was exploratory or a unilateral change in role and title. The respondent gave evidence that it was optional, with a rotation among colleagues if it was not feasible. The complainant viewed the proposal as a demotion. The true intent of the proposal was not tested as the complainant resigned and did not return to work. Furthermore, there is no subsequent correspondence, so it is difficult to ascertain the true intent of the proposal. As the complainant was aware of the grievance procedure in the unsigned contract, she is obliged to raise a grievance about any issue she had with a change or role or title. It is surprising that when resigning in March 2022 that the complainant did not refer to the complaint of May 2020 or the proposed new role particularly as these were her reasons for her resignation.

Regardless of whether the contract was finalised, there is an implied contract between the parties and an obligation of mutual trust. This entails the use of procedures for the benefit of both parties. Even though there was an initial verbal complaint, the obligation was on the complainant to give details and follow up on the complaint. On the proposed change of role there was also an obligation on the complainant to follow this up through the grievance procedure.   

Reasonableness Test

The reasonableness test allows for an objective assessment of the employer’s behaviour and to a lesser extent, the employee’s behaviour.

In Western Excavating Ltd v Sharp [1978] IRLR 332, Lord Denning described the test as asking whether the employer ‘conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, and if so, the employee is justified in leaving.’

On 15th May 2020, the respondent had a dilemma having been made aware of a complaint with no written details and a request to keep the matter confidential. Mr Wallace gave evidence of the action he took on foot of the complaint. I would view this as a reasonable approach by an employer given the circumstances.

The complainant was then not in the workplace from July 2020 up until the date of resignation on 7th March 2022. Over this period, there is substantial email correspondence which mainly relates to the respondent requests for medical certs and a request to meet about a return to work. There is nothing contained in the correspondence which flag any live issues causing real concern to either party.

From the evidence given at the hearing and on examination of the interaction between the parties, I do not view the respondent’s conduct or behaviour as being unreasonable. It was reasonable to request the complainant to work Saturdays when there was no notice or awareness of the complainant’s issues at that time. The respondent gave evidence that childcare was the reason for the annual leave request and understood that the complainant may still be available to work on a Saturday. Also, the contact by the respondent during the sick leave period was reasonable particularly given the length of absence and the lack of a proposed return to work date.

Although the complainant was on extended sick leave, there is still an obligation as part of the employment relationship to raise any serious issues, particularly if they are serious enough to warrant a resignation.

The proposal to return to a different role may have had negative connotations and a feeling of being undermined in the eyes of the complainant. The onus though was still on the complainant to document her concerns on her future role, particularly if she felt this was a reaction to her earlier complaint. To ground a claim of constructive dismissal, it is paramount that grievances are raised to allow for an opportunity for them to be resolved. The complainant did not do this as per the procedures nor did she highlight that the change of role was the last straw and would lead to her resignation.

Particularly because the complainant did not follow up on or outline her grievances, I decide that a case of constructive dismissal has not been made out. Although the respondent was notified of a complaint in May 2020, it would be harsh to lay responsibility for the complainant’s issues when they were not on full notice or alerted to these as live issues.

In Conway v. Ulster Bank Ltd UD474/1981 it was held that the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

For the reasons set out above, I find that the complaint of constructive dismissal is not well founded.

CA- 52749-001 – Complaint under Terms of Employment (Information) Act 1994

The complainant gave evidence that although she was given a contract in or around September 2019, there were a few errors which she sought to have revised. The respondent had not signed the contract and she was unwilling to sign until the terms set out were corrected.

The respondent accepts that he should have issued the contract earlier although once the complainant sought the contract, it was issued within days. The respondent confirmed in evidence that the contract was not signed by the respondent as employer.  

Section 3 (4) of the Act states-

 4) A statement furnished by an employer shall be signed and dated by or on behalf of the employer.

As the contract was not signed and dated by the employer, I find that there has been a breach of the Act. As this is a subsisting and ongoing breach, the case of  An Animal Carer v. A Charity, ADJ 9820, is authority that the matter still comes within my jurisdiction, as the subsisting breach is within the 6 months from the receipt of the complaint by the Workplace Relations Commission.

In accordance with Section 7 of the Act, I declare that the complaint is well founded, and order the employer pay to the employee 4 weeks remuneration based on a 28hr week. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA- 52749-003 – Complaint under Payment of Wages Act 1991

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The complainant alleges that she has been underpaid by 5 cents as the contract states that she would be paid €13.75 per hour, and she was only receiving €13.70 with effect from 4th October 2019 to the date of resignation. The complainant claims the reduced hourly rate also affects her final payment of accrued annual leave and public holidays.

The respondent has stated that the amount in the contract is an administrative error and that the wrong figure was inserted when the HR Consultants drafted the contract.

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55,outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Therefore, in the first instance, I need to ascertain what was properly payable. Although there is a conflict in evidence, the complainant is relying solely on the figure in the contract. Evidence was given during the hearing that there are numerous errors in the contract, and it is not signed by either party. On the strength of the evidence before me, the complainant has not made a sufficient case that the higher hourly rate is properly payable.

I find that the complaint under the Payment of Wages Act is not well founded and there has been no breach of the Act.

CA- 52749-002 – Complaint under Unfair Dismissal 1977- I find that the complaint of constructive dismissal is not well founded. I find that the complainant has not been unfairly dismissed.

CA- 52749-001 – Complaint under Terms of Employment (Information) Act 1994- In accordance with Section 7 of the Act, I declare that the complaint is well founded, and order the employer pay to the employee 4 weeks remuneration based on a 28hr week. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA- 52749-003 – Complaint under Payment of Wages Act 1991- I find that the complaint is not well founded and there has been no breach of the Act.

Constructive Dismissal, Terms and Conditions, Payment of Wages