Complainant

Respondent

Parties

Joanne  Maher

Kerr's Tyres Ireland Limited

Representatives

Mark O'Connell

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-00049159-001

11/03/2022

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

CA-00049159-002

11/03/2022

The Complainant commenced her employment on 1 January 1999. She stated that difficulties arose in the workplace following the takeover of the company in 2019. Although she tried to address these issues both informally and formally, she asserted that the Respondent acted unreasonably and left her with no alternative but to resign from her employment.

Following a takeover of the company in early 2019, the Complainant stated that she began to suffer mistreatment at work. Specifically, she stated that her duties were unilaterally reassigned and she was told that she wasn’t allowed to answer the phone as she had done before. She also alleged that she was given a range of new duties for which she received no training. This was particularly difficult because the Respondent introduced a new software system and she was repeatedly told by her manager NK that she was doing the checks incorrectly. She stated that she suffered stress and panic attacks as a result.

In April 2020, she was placed on Covid PUP payments. When she returned to work in September 2020, her role had changed but nobody informed her of this. She also stated that she suffered intimidation by DN, who criticised her heavily both verbally and by email for failing to complete tasks in which she was never trained.  Specifically, he placed impossible demands on her and a pattern of behaviour developed whereby he made her feel afraid. She also stated that the purchasing duties were removed from her. The Complainant also highlighted that while she was put on temporary lay-off in January 2021 because of Covid and was told not to come into work, other administrative staff were allowed onto the Respondent’s premises. When she did return to the office in June 2021, she was shocked at the failure of the Respondent to follow any Covid hygiene precautions and stated that she was bullied by NK, who the Complainant asserted treated her even more unfavourably than DN who had been made redundant. 

As a result of her mistreatment by NK, the Complainant made a formal complaint to him in July 2021. NK passed the complaint onto BP and it was investigated by LM, the Retail Operations Manager. The Complainant was informed on 7th December 2021, that none of her complaints were upheld.

It was asserted by her legal representative that the investigation into her formal complaint was unfair because:

·       she was not presented with transcripts of her interview and the summary she was given did not capture key points she made;

·       She was not informed of the identities of any of the other parties interviewed as part of her complaint;

·       She was not presented with the transcripts or memoranda of interviews with other parties mentioned by her in the course of her complaint;

·       She was not given any substantial reasons as to why her complaints were not upheld;

·       BP was present at her interview, despite assurances given to her in advance that he would not be

·       She was not afforded the opportunity to bring legal representation or be accompanied by a friend at the hearing

As a result of its perceived unfairness, the Complainant appealed the outcome of the grievance investigation. The appeal hearing took place on-line on the 18th January, 2022 and was conducted by JM. On 9th February, 2022, the Complainant was informed that her appeal was not upheld. She also highlighted that during the process of having her complaint heard and adjudicated upon, NK was promoted which made her feel even more demoralised.

On 14th February, 2022, she wrote a letter to the Respondent informing them of her decision to resign on the grounds that she had been constructively dismissed. In the letter, she said: I am resigning from my employment in the following circumstances: by the way you have been treating me, you have broken the contract of employment with me. These breaches are so serious that it leaves me with no option but to resign.” She also however gave the Respondent an opportunity to revert with proposals on how to deal with her concerns and asked to be contacted before 12 noon on the 18th February, 2022. As nobody in the Respondent contacted her, she considered herself to be dismissed.

DMG, a former work colleague, also gave witness evidence in support of the Complainant. He stated that he heard NK shouting at the Complainant in the office and being abusive towards her. He also stated that NK told the Complainant that her job was to do what he “f**ing wanted” her to do. The witness also gave evidence of the huge pressure that was on the Complainant in her role.

Mr Norman Kerr, the Managing Director, stated in evidence that a full investigation was carried out into the Complainant’s grievance and that she was also afforded the opportunity to appeal. He was unable to say when questioned if the Investigator spoke to anyone other than the Complainant as part of the investigation into her formal complaint.

Mr Kerr also stated that the Complainant was given training in her role and highlighted that she failed to telephone him directly in relation to any of the difficulties she had in the workplace. He also disputed the Complainant’s assertion that the Respondent had not followed the Covid guidelines and asserted that the Company had adhered to all of them.

The Law

This is a claim of constructive dismissal pursuant to the Unfair Dismissals Act. The Act at s.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,”

Findings

As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute. The onus of proof therefore rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her in terminating her employment.

The statutory definition and the relevant case history envisages two circumstances in which a resignation may be a ‘constructive dismissal’. They are where the employer’s conduct amounts to a repudiatory breach of the contract of employment such that the employee is ‘entitled’ to resign, often referred to as the ‘contract test’. In the seminal case of Western Excavating (ECC) v Sharp [1978] IRLR 332, this was said to require that the employer was 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”.

The second circumstance, which can be relied upon either as an alternative or in combination with the contract test, is where the employer conducts his affairs in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer. Described as the reasonableness test, it was stated in Western Excavating (ECC) v Sharp [1978] IRLR 332 that an assessment should be made of “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”. As set out in Conway v Ulster Bank Limited UDA 474/1981, the Complainant is required also to act reasonably by providing the employer with an opportunity to address whatever grievance they may have.

As there was no suggestion that the Respondent breached the contract test, I will examine the reasonableness test and assess whether the Complainant acted reasonably in deciding to terminate her employment and whether the actions of the Respondent were reasonable in the way in which they dealt with her complaint.

In assessing whether the Complainant acted reasonably, I note that she provided the Respondent with the opportunity to address her complaint both by raising a grievance and by appealing the outcome of this investigation, in accordance with the requirements of the Employment Appeals Tribunal in the Ulster Bank case cited above. I also found the Complainant’s evidence to be credible.

In terms of the reasonableness of the Respondent’s behaviour, I note that an investigation was carried out into the grievance made by the Complainant and that she was afforded the right to appeal the findings of this investigation.

I also noted however that neither LM who conducted the investigation or JM who heard the appeal attended the hearing to give evidence and that it was not disputed that the Complainant was the only person who was spoken to as part of the investigation into her complaint. In the absence of any evidence from LM to explain why she did not consider the Complainant’s allegations to be credible or, why she failed to speak to anyone else as part of her investigation before deciding not to uphold the Complainant’s formal complaint, I cannot find that she acted reasonably by not upholding the Complainant’s grievance given the uncontested and credible evidence presented by the Complainant at the hearing. I also noted that JM who conducted the appeal hearing did not attend to give evidence and cannot also find, in the absence of any evidence from him to explain why he did not allow the Complainant’s appeal, that he acted reasonably given the uncontested and credible evidence presented by her at the hearing. I also noted the absence of NK, the perpetrator of the Complainant’s mistreatment from the hearing and find that, in the absence of any evidence from him to refute the allegations made by the Complainant, I must prefer the credible evidence from her.  While I noted Mr Kerr’s evidence that the Complainant had failed to contact him at any stage to discuss her difficulties, there was no procedure presented at the hearing to suggest that that she could have done so and I am satisfied that by invoking the Respondent’s grievance procedure, she acted reasonably.

Considering all of the foregoing, I find that, as the Complainant has met the reasonableness test and the Respondent has failed to do so, she was unfairly dismissed.

CA-00049159-001:

THE LAW

Section 7 of the Unfair Dismissals Act which, 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,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) 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, 

(b) 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 employee, 

(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, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

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, or in relation to superannuation”;

FINDINGS

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate form of redress in accordance with section 7 (1) of the Act set out above. I note the Complainant’s preference for compensation as a remedy and find that this is appropriate in this instance given that she has found alternative employment elsewhere.

In calculating the level of compensation to award, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated inter alia that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

In the instant case, I have found, as outlined in my analysis above, that the Complainant acted reasonably in deciding to terminate her employment and that she therefore made no contribution to the unfair dismissal under section 7(2) (b) or (f). In addition, I have outlined above that the Respondent acted unreasonably and has not met the test outlined in 7(2) (a). I must recognise also that the Complainant found alternative work in August 2022 where she is earning €1.14 per hour less than she was with the Respondent and is currently not in receipt of health insurance, which the Respondent paid for while she was in their employment. I also noted that no documentary evidence was presented to demonstrate that the Complainant was looking for work between the date of her dismissal and when she started her new role although she gave oral evidence of a limited job search during the period she was unemployed. In addition, I noted that she is not seeking further employment to mitigate her future loss. As the Complainant in the instant case was constructively dismissed, I find that section 7(2)(d) and (e) of the Act above do not apply.

I must also recognise that the Complainant lost her rights under the Redundancy Payments Acts, 1967 to 1973, as set out in section 7 (3) above, as a result of the termination of her employment and find that she should be compensated for the loss of these entitlements.

This is consistent with the decision of the Adjudication Officer in ADJ-00033768 who stated inter alia that:

“It is important to note that actual loss, prospective loss and a redundancy entitlement are separate and distinct. Actual and prospective loss is calculated according to loss arising after the (unfair) dismissal. The third category relates to an entirely separate head of loss, that of a lump sum entitlement from accrued service.

For clarity, this applies to all unfair dismissals where compensation is to be awarded, and…It arises from the definition of ‘financial loss’ in section 7 and is not related to the grounds for the dismissal

Considering all the foregoing, I make an award of €17,500 in respect of the unfair dismissal.

CA-00049159-002: This complaint was withdrawn.