Complainant

Respondent

Parties

Joanne  Kelleher

 Intensive Community Programmes

Representatives

 Kirby Healy Chartered Accountants

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-00028395-001

14/05/2019

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

CA-00028395-002

14/05/2019

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

CA-00028395-003

14/05/2019

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

CA-00028395-004

14/05/2019

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

CA-00028395-005

14/05/2019

The complainant had been employed by the respondent as a Social Care Worker from July 21st, 2017 until she resigned her employment on March 21st, 2019. She complains, among other complaints that she was constructively dismissed.

The complainant resigned her employment and is claiming that she was constructively dismissed.

Her complaint under the Organisation of Working time Act relates to her being required to work twenty-four hour shifts, above thirteen hours per day, without any daily rest period or any rest periods during shifts.

She has a second complaint under that Act related to rest breaks.

She also says that her employer failed to pay her wages in March 2019 and that she had been left short in previous months in respect of shift payments.

Regarding her complaint of unfair dismissal, she says that she had no alternative but to leave, mainly arising from the incidents above.  But also, she says that she was subjected to false allegations.

She was asked to attend a meeting without notice and accused of wrong doing and then suspended. She was not afforded the right to be accompanied at the meeting and was told that she was going to lose her job.

Following this she resigned, but in her oral evidence she could not remember when. She was never provided with evidence in advance of these meetings. She says her employer failed to follow its own disciplinary procedures.

The respondent offered social care services but is no longer operational. It has been in liquidation since August 2019.

The liquidator attended the hearing.

He had reviewed the complainant’s file and it is accepted that there is no statutory statement of her terms of employment.

However, that review confirms that it is ‘mathematically impossible’ that the complainant worked the twenty-four hour shifts she claims.

In February she worked a total of one hundred and eight hours (including six ‘sleepovers’) and in January one hundred and forty-three hours with eight ‘sleepovers’.

In respect of her Payment of Wages Act complaint she was paid in April for outstanding annual leave and public holiday entitlements. She was not paid for March as she did not work any hours in that month. Further evidence was given of payments for January and February.

The respondent accepts that some wage payments were late but says that none remains outstanding.

Regarding her breaks the respondent says that she was given the breaks to which she was entitled.

The complainant attended the hearing very poorly prepared. She attended the online hearing from her car and had no documentation of any sort related to her complaint.

Ready access to justice and a fair remedy is a cornerstone of the ethos of the WRC.

A person wishing to make a complaint will find it easy to do so; there are no fees or cumbersome procedures, and, at a hearing, some latitude will be extended especially to unrepresented parties to ensure that their complaint is properly ventilated and understood. The process is inquisitorial, i.e. in the nature of an investigation.

In this case the complainant offered no documentary evidence to support her various complaints. She seemed surprised at the suggestion that she was required to make an oral submission.

Having heard the case to the extent that it was possible to do so, I offered to consider an adjournment to allow the complainant to prepare necessary supporting materials.

A full hearing then took place on all of the complaints.

I have now fully considered that preliminary aspect of the matter, and as to whether an adjournment should have been granted.

I decided against that option.

In the first place, a complainant is expected to make some minimum effort to present their case at a hearing, beyond mere assertion of the complaint.

In this case the complainant’s approach was entirely inadequate.

However, I will not decide the matter on that basis alone.

More importantly, having probed the complaints at the hearing I am not satisfied that the complainant has access to any material relevant to the complaint which would add to her submissions at the first hearings, and that nothing would be served by deferring a decision.

Her assertion that she could produce such information was unconvincing, to say nothing of the fact that it had not been produced for a hearing of which she had been given adequate notice.

Accordingly, I decided to proceed to a decision without further adjournment.

Her complaint under the Terms of Employment (Information) Act 1994 was not disputed and succeeds.

I accept the evidence of the respondent (who is an independent accountant working as liquidator) in relation to the complaints under the Payment of Wages Act. The complainant has not made out any case in relation to these complaints and, as noted above, her evidence to the hearing did not suggest that any such evidence exists.

Regarding the complaint of constructive unfair dismissal, the complainant says that in the lead up to a meeting in March there had been a reduction in her hours.

She was then called to a meeting at which, she says, she was told that her employment was going to be terminated.

She then resigned.

She has relied on the alleged non-payment, or delayed payment of her wages to justify this, as well as ‘false allegations’ which she says were levelled at her in the course of the March meeting.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Act follows when an employer has terminated the employment, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning.

In most, if not all cases an action for breach of the employment contract is unlikely to arise.

A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantiallyutilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

 ‘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.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The EAT has made it clear in a series of decisions, and followed by the Adjudication service, that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above).

There was no evidence that the complainant pursued any of the alleged grounds for her resignation by way of a grievance prior to resigning; the delay in paying wages, for example.

She has complained that the respondent failed to follow disciplinary procedures, but this is generally only a relevant factor when the employer has terminated the contract following some allegation of misconduct.

She further submitted that various allegations were made against her at the March meeting, but as no further action was taken on these this is likewise an entirely inadequate basis for justifying her resignation on the grounds of a constructive dismissal.

The simple laying of allegations by an employer (even though there was no evidence of such allegations) will not justify an employee in breaking their contract of employment.

The complainant has failed to meet any of the tests set out above. She resigned her employment, possibly in the knowledge that her future employment might be at risk, and indeed the respondent was placed in liquidation some six months later.

However, this is insufficient by quite some distance to ground a complaint of constructive unfair dismissal.

For the reasons set out above she has also failed to make out a case in relation to the other complaints (except that under the Terms of Employment (Information) Act, 1994) and they are not well founded.

For the reasons set out above Complaint CA-00028395-001 is well founded and I award the complainant €1,500.00

Complaints CA-00028395-002, 003, 004 and 005 are not well founded.

Constructive Dismissal