Complainant

Respondent

Parties

Paula  Denvir

Kilcullen Pharmacy Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Karl Kearney Karl M Carney & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046938-001

02/11/2021

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

CA-00046938-002

02/11/2021

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

CA-00046938-003

02/11/2021

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

CA-00046938-004

02/11/2021

The Complainant commenced employment with the Respondent on 1 August 2019, as a pharmacist. Her employment ended on 31 August 2021. She worked 42 and 40 hours on alternate weeks.  She was paid an annual salary of €80,000. 

The matter was heard by way of remote hearing on 4 October2022, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

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.

In her submission the Complainant outlined that when she was employed by the Respondent, she had sought a bigger salary than the one which was eventually agreed upon.  However, an agreement was reached whereby she was offered the possibility of a €5,000 bonus “for improved dispensary turnover.” At the end of July 2020, after she had completed one year, the dispensary turnover had increased by 3.4% and the Respondent paid the Complainant the €5,000 bonus.

The Complainant submits that on 31 July 2021, she had completed her second year of employment and the annual dispensary turnover was up by 15.52%.  The 31 July 2021 was also the day the Complainant tendered her letter of resignation.  In her letter she noted the turnover increase and asked when she could expect to receive her bonus.  No bonus was ever forthcoming.

The Complainant gave evidence on Affirmation

In her evidence the Complainant stated that when she was coming onboard, she was told by the Respondent that if turnover in the shop increased, she would get a €5000 bonus. She was paid the bonus for 2019-20, when the turnover increased by 3.4%. In 2020-2021, the turnover increased by 15.54% and thus she is entitled to another €5000 bonus.  She pointed this out to the Respondent in her resignation letter.  No one disputed the figures.  When the Complainant contacted the Respondent about this, she got no reply.

In cross examination the Complainant stated that she had a verbal agreement with the Respondent about the bonus and that it was solely based on increased turnover and that she had never been set a target. She had been told if turnover improved, she would be paid the bonus.

The Ms Joan Kilgallen gave evidence on Oath for the Respondent.  She stated that she had agreed with the Complainant that there was a possibility of a €5000 payment, if things improved, customer care also counted in deciding if the bonus had been earned. At the end of the Complainant’s first year, prescription items had improved but she was disappointed the increase had not been bigger.  She decided to pay the €5000 in year one in order to hold onto the Complainant. When asked if she would have paid the bonus if the Complainant had stayed on, the witness replied that she did not know.

In cross examination, when asked whether there had been a verbal agreement, the witness stated that the bonus was based on “more than just figures.”

Section 5 of The Payment of Wages Act 1991 states;

 (1)    An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

(a)   the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)   The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)    In the case of a deduction, the employee has given his prior consent in writing to it.

The Payment of Wages Acts prevents an employer making unlawful deductions from the pay ‘properly payable’ to an employee. The question here is whether the bonus was properly payable in the period in question, when it has been found that there was no extant contract of employment (see below).

Regarding the payment of bonuses, I refer to the High Court decision in Cleary and Others -v- B&Q Ireland Limited, 2016 IEHC119. In that case Mr Justice McDermott stated:

“The discretion to withdraw the bonus scheme at any time, in my view, was always intended to apply in future and attached to the conferring of bonuses, as yet un-accrued, under the terms of the Scheme.  The payment of the bonus crystallised as a contractual obligation once it was earned in accordance with the terms of the Scheme as operated”.

The interpretation of this decision is that once a bonus has been earned it cannot be revoked.  However, this is in the context of a written contractual obligation.  No such obligation existed in this case.  There was some discussion between Complainant and Respondent, but nothing was ever put in writing.

In this instant case, the Complainant argues that they had earned the bonus and it is thus due to them despite the fact that they no longer work for the respondent.  However, in the absence of a written agreement/contract specifying the criteria required to earn the bonus, I cannot find in the Complainant’s favour.

The complaint is not well founded.

In her written submission the Complainant stated that she had never received the core terms of her employment. Shortly after starting work with the Respondent, she enquired of the Shop Manager and asked her was there anyone in particular she should speak to about getting her contract.  The Shop Manager told the Complainant that she too was looking to get a contract of employment for herself too and that none of the shop staff had contracts. The Complainant submits that over the course of the next seven months the Shop Manager made numerous requests for contracts to their employer, but nothing came of it.

The Complainant submits that she did not get a contract of employment subsequently and that it was only when the disciplinary process commenced, and she raised the matter with the Respondent did she received one attached to an email which the Respondent asserted had been issued to her previously.  The Complainant categorically denied she had ever been issued with any such contract and points out that the copy sent to her had no signatures on it.

In her evidence the Complainant stated when she started working for the Respondent, she spoke to the Shop Manager and looked for a contract and that this woman had in turn sought contracts for all the staff in the shop, but none were forthcoming. The Complainant stated that she did not get a contract of employment until she got the email invitation to the disciplinary hearing on 5 May 2021.

In her evidence Ms Kilgallen, for the Respondent, stated that she had brought a contract to the shop for the Complainant to sign within six-weeks of the Complainant’s commencement. She put forward that the Complainant had taken the contract from her and had agreed to look at it and sign it. Ms Kilgallen did not follow up on this and then forgot about the matter.

In cross examination when asked whether she had received letters from the shop manager asking her to provide contracts the witness replied that she had.  When asked if this would indicate that the Complainant had no contract the witness agreed that it would.

When asked whether she had a signed copy of a contract of employment, Ms Kilgallen stated she did not.

Sec 3 (1) of this Act sates,

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

I note that Sec 7 (2) (d) of the Act states, “compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.

There is a conflict of evidence here. However, the acknowledgement from Ms Kilgallen that the shop manger did write to her looking for contracts for staff in the shop indicates that no contracts existed.

 Without collaborating evidence, such as signed contract of employment, I conclude that a contract, as required under the Act, never existed, and the Respondent has breached the Act.

The complaint is well founded and I award the Complainant €1,000.00

The Complainant provided a written submission.

The Complainant submits that she was unfairly dismissed by way of a constructive dismissal. 

In her submission the Complainant outlined that she was requested to attend a disciplinary meeting without an investigation having taken place. The Complainant submits that she received an email from the Respondent on 7 May 2021, requesting her to attend a disciplinary hearing on 11 May 2021, regarding two customer complaints which had been made against her.

Regarding the first incident, the Complainant submits that the Respondent did not check with another colleague who had been n the shop at the time the first alleged incident with the customer had taken place. The Complainant, on advice from a solicitor, wrote to the Respondent and told her that she would not attend a disciplinary hearing as there had been no investigation.  On foot of this the disciplinary hearing was postponed but the Respondent suggested that the Complainant had mis-interpreted her email and that in fact she was being asked to attend an investigation meeting not a disciplinary hearing.

The Complainant submits that a meeting took place on 2 June 2021, which was chaired by a woman the Complainant did not know. The Complainant received a copy of the notes from the meeting on 4 June 2021. She believed the notes were not an accurate reflection of the meeting.  The Complainant rang the Chairperson too discuss the notes and, in this conversation, she discovered that the Chairperson was actually another pharmacist in the organisation.  The Complainant felt humiliated when she heard this as she thought the matter might have been subject of discussion among her peers.

Around this time the Complainant submits that she started looking for a job elsewhere.  The situation was causing her stress and taking its toll on her wellbeing. 

On 28 July 2021, the Complainant submits that she received an email inviting her to a disciplinary hearing scheduled to take place on 30 July 2021. The email contained the investigation report which upheld both complaints.  The Complainant did not agree with the findings. In the meantime, she had been offered another position and she decided to take it as she believed, regardless of the outcome of the disciplinary hearing, relations had soured, and she felt stressed and uncomfortable at work.

The Complainant handed in her notice on 31 July 2021, giving her employer one months’ notice.  Despite this the Complainant agreed to attend a disciplinary hearing on 19 August 2021. At this hearing the Complainant highlighted her concerns about how the matter had been handled.

The Complainant gave evidence at the hearing under Affirmation.

In her evidence the Complainant stated that it was an unfair dismissal because she felt so uncomfortable at work and that the relationship with the Respondent had soured so much.

The Complainant outlined her perception of the two incidents which had led to the customer complaints which had given rise to the disciplinary process being initiated. The Complainant stated that she was very upset at being called to a disciplinary hearing when there had been no investigation. The Complainant was taken aback when the two complaints against her were upheld. She also felt humiliated when she found out that the findings had been made by another pharmacist employed by the Respondent. The combination of the findings and the humiliation of a peer pharmacist carrying out the investigation was very difficult.

In response to questions put to her in cross examination, the Complainant stated that she thought the person appointed to carry out the investigation should have been someone with HR experience.

She also stated that in her opinion she had been reprimanded by the Respondent in relation to the customer complaints before any investigation had taken place.

When it was put to the Complainant that she had started looking for a job long before the conclusion of the investigation process the Complainant stated that she had, but only after she saw the notes of the investigation meeting. 

When asked whether she had brought her concerns to her employer’s attention, she stated she had not; she couldn’t take anymore and why would she have done so as she could not see any way it was going to be sorted.  She could not see herself getting any fairness.

When asked whether she had given her employer any time to deal with her concerns, the Complainant answered, no.

The Complainant stated that the reason for her resignation was the level of stress and anxiety she was experiencing and because of the way the matter had been handled.

When asked why she had not appealed the outcome of the investigation, the Complainant stated that there had been no conclusion to appeal; that at that stage she just wanted to leave due to the stress, she felt she had to go and it was not worth appealing.

Regarding mitigation, the Complainant stated that her notice expired on 31 August 2021 and that she had commenced employment with a new employer on slightly better terms and conditions, on 1 September 2021.

Ms Joan Kilgallen, Respondent, gave evidence under Oath at the hearing.

In her evidence Ms Kilgallen stated that the Complainant was pleasant, able and good at her job. She stated that she had initially spoken with the Complainant about the first incident unaware that another incident had taken place. The two disagreed about the first incident.  When the second incident took place, the witness stated that they two things had to be investigated, so she commenced a disciplinary process.  When the Complainant replied to the invitation and pointed out that an investigation was required in the first instance, she changed it (to an investigation meeting) immediately.

Regarding the appointment of a pharmacist to carry out the investigation the witness stated that she believed it correct that someone with a knowledge of the business would be important and the pharmacist appointed also had experience in HR matters.

In cross examination, the witness stated that she had read the investigation report and that the outcome was clear.

The complaint is one of constructive dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

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 too 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 ‘substantially utilised 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 mean something that is so intolerable as to justify the complainant’s resignation and something 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.

Looked at by reference to either of the above tests the Complainant does not come anywhere close to the burden of proof necessary to ground her case.

The initiation of an investigation when complaints were received from customers is not unreasonable. The process used in this case, an investigation meeting, chaired by a peer pharmacist, was not unreasonable.  A request to attend a disciplinary hearing was not unreasonable. Combined, none of the above could in any way be deemed to be behaviour such as to make the Complainant’s position intolerable.

The Complainant did not utilise the grievance machinery, she tendered her resignation before the disciplinary process had reached a conclusion. Her peremptory resignation without reference to the company procedures is fatal to her case on these facts.

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).

For example, in Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.’

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

‘For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.’

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

Even by applying the ‘Berber’ test to the Complainant’s conduct alone the case would be in difficulty. Her failure to avail of internal procedures renders the complaint devoid of any merit.

The Complainant was not unfairly dismissed.

Contract of employment, bonus, constructive dismissal