Complainant

Respondent

Parties

Philomena  Clynch

J.R. Carson Limited  T/A JR Labels

Complainant

Respondent

Anonymised Parties

Representatives

Mark O'Callaghan CCK Law Firm

Sherwin O’Riordan instructing Hugh O’Flaherty BL

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-00049497-001

04/04/2022

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

CA-00049497-002

04/04/2022

These matters came before the WRC dated 04/04/2022 as complaints submitted under section 8 of the Unfair Dismissals Act, 1977 and section 27 of the Organisation of Working Time Act, 1997 respectively.  The Complainant’s role in the Respondent company was that of accounts manager at the time of her resignation.  The Complainant was employed by the Respondent from 06/09/1999 until she resigned her employment on 25/11/2021, with such resignation taking effect on 23/12/2021.  The Complainant was paid weekly €384.00 gross for a 3-day working week.  Her hours of work were 8.30am to 5pm. 

The Respondent is a company specialising in the manufacture and supply of self-adhesive labels.  It is a family run business employing ten staff in a unit in Clondalkin Industrial Estate. 

CA-000-49497-001

On the WRC complaint form, in respect of “Unfair Dismissal Type” the Complainant states “I had to leave my job due to the conduct of my employer or others at work (Constructive Dismissal). I have at least 12 months service.” The redress the Complainant seeks is compensation. 

The Complainant’s claim is denied by the Respondent.  The Respondent submits the Complainant’s contention that she has been constructively dismissed (whether for the reasons set out in her complaint form or otherwise) is without foundation.

The redress the Complainant seeks is compensation.   

CA-000-49497-002

On the WRC complaint form, in respect of “pay complaint type” the Complainant states “I did not receive my paid holiday/annual leave entitlement”.  The claim is denied by the Respondent. 

Written submissions were filed by both parties the afternoon before the hearing.  Each submission was supplemented by a booklet of documents and a number of exbibits respectively.  I first had sight of said submissions in the half-hour preceding the hearing in the case of one of the submissions and as the hearing commenced in the case of the other.  The WRC, in its pre-hearing correspondence, sets out a clear request that submissions and all documentation relied upon for the hearing be filed by the parties in advance of the hearing date.  It does not make for a fair or efficient hearing for either party to refer to or to produce documentation at hearing without first having furnished same to the opposing party and to the Adjudication Officer. 

As the Complainant terminated the contract of employment, she bears the consequent burden of proof imposed by the legislation.  Having regard to same, the Complainant presented her evidence prior to the Respondent opening their case. 

I have carefully reviewed the Complainant’s complaint form and the written submission from which I have extrapolated the core issues of her complaints and I summarise hereunder.

CA-000-49497-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

The Complainant commenced her employment with the Respondent in 1999 as a permanent full-time employee.  The Complainant submits initially there was no contract of employment/statement of terms of employment until one was produced in 2013.  The 2013 document when initially produced did not reflect the terms of employment but the Complainant submits she signed if after it was amended.  The primary disagreement was that the document contained a mandatory retirement age clause.  Another contract was produced in 2018 which the Complainant does not recall signing and the Complainant maintains the position there was no discussion about the insertion of a mandatory retirement age.  Other terms of employment varied over the years by oral agreement namely in regard to the duration of the Complainant’s working week.

The Complainant submits there were discussions about retirement.  There was a discussion in 2020 where it was agreed to discuss it again at the end of 2021.  The Complainant submits that somewhat out of context and to the Complainant’s surprise AC raised the issue of retirement on her return to work following a period of sick leave after the death of her partner in May 2021.  The Complainant confirmed she was happy to stay working.  The Complainant submits in her written submission that AC “requested her attendance” in November 2021 to find out “what her plans were”.  The Complainant replied she had no plans to retire, and she submits AC informed her that all the staff were complaining about her and they were “walking on eggshells” around her.  The Complainant submits she was immediately shocked and very upset to hear this and she wanted to know why it had not been brought to her attention before.

The Complainant went to see AC on the next day to discuss the matter further.  She explained to him that what he had said had upset her greatly and that it had not made any sense to her.  The Complainant submits AC added that customers had also complained and when she requested the identity of such customers AC responded they did not make an official complaint and he would not identify them.  The Complainant refused to believe that there was any such complaint from any customer of the Respondent.  The Complainant submits she was shocked and reacted with disbelief.  The Complainant was devastated by the claims made against her and she felt she had no alternative but to resign which she did the next morning.  The Complainant submits she confirmed to AC that in light of the allegations he had made and the manner in which he did she felt she had alternative but to resign.  The Complainant submits AC immediately acknowledged the resignation letter without further discussion.  The Complainant instructed a legal firm on or around 25/01/2022 and this was followed by exchanges of correspondence between the parties.  The Complainant submitted her complaint to the WRC on 04/04/2022. 

Summary of direct evidence of Complainant:

The Complainant states she was called in to two meetings at the end of November by AC.  The Complainant states AC wanted to know what her plans for retirement were and he told her complaints had been made by all the staff.  The Complainant states this was the first time she had heard this and she states, “I can’t stay working here”.  The Complainant states she could not get what AC had said out of her head and she states AC had said customers also complained which she asserts was a lie.  The Complainant states she left the office and she felt upset and traumatised after all those years working there.  The Complainant states she could not work there any more after that.  When asked to describe her role she described it as one of accounts, sales and administration.  In response to a question from the AO the Complainant confirmed she had worked through her notice apart from three days due to a Covid situation. 

Summary of cross-examination of Complainant:

The Respondent representative sought to clarify what he described as certain inaccuracies in the Complainant’s written submission.  Specifically, he sought clarification as to who called the meeting referred to in the Complainant’s written submission where it is submitted “in November 2021 the Respondent’s Managing Director AC requested the Complainant’s attendance to find out what her plans were” and again in direct evidence where the Complainant states she was called in to two meetings by AC. 

The Respondent representative states there is contradictory evidence in the accounts of these meetings in regard to the conversations that took place and specifically in regard to which party instigated the meeting on 23/11/3021.  The Complainant was dismissive of this line of questioning, quite vague in her response, and make reference to whether it really mattered who called the meeting.  The Respondent representative put it to the Complainant that it did matter and that words were important here.  The Complainant in giving her direct evidence had stated she went to the office as she was requested to by AC but she now accepts she initiated the first of these meetings as she wanted to inform AC that she wished to change her working days the following week. 

The second inaccuracy in the Complainant’s written submission addressed by the Respondent representative relates to the matter of contracts of employment.  The Complainant’s written submission states as follows: “Initially there was no written contract of employment/statement of terms of employment.  But one was produced in 2013.  The document initially produced did not reflect the terms of employment, but she signed it after it was amended.  The primary disagreement was that the contract document contained a mandatory retirement age clause.  Another contract document was produced in 2018.  The Complainant has a copy of it.  She does not recall signing it.  It is her position that there was no discussion about the insertion of a mandatory retirement age.”

The Complainant was shown a copy of a contract/statement of terms from when she commenced her employment with the Respondent in 1999 and asked by the Respondent representative to verify if the signature on the document was her signature and she indicates that it is her signature.  There was reference made to a contract in 2015 and it was put to the Complainant that she refused to sign said contract due to the provision contained therein of a mandatory retirement age of 65 with which the Complainant did not agree.  A copy of the 2018 contract providing a mandatory retirement age of 70 was exhibited by the Respondent representative and shown to the Complainant for verification of her signature.  The Complainant verified that it was her signature on the 2018 contract.  The contract was signed by the Complainant on 18/01/2018.

The Respondent representative broached the matter of the reasonableness of AC as an employer with the Complainant.  He put it to the Complainant that she was always facilitated in her various working patterns by AC throughout her employment and that whatever she wanted she got.  The Respondent representative asks the Complainant if she had ever received financial assistance from AC.  The Complainant initially responds in the negative and when pressed she states she personally did not receive financial assistance, but AC had advanced €25,000.00 to her daughter as a loan to assist her with the purchase of a house. 

The Respondent representative put it to the Complainant in the context of her interactions with other staff that she is prone to lose her temper.  The Complainant denied this and when questioned further in response to interactions with named individuals she accepts here may have been some disagreements.  In one of the incidents the Complainant states she received an apology from the individual concerned and in another of the incidents her response was that “she had carried” that individual while she worked there. 

The Complainant was asked if she accepted that discord could arise in the workplace between employees and that management is permitted to deal with such instances to which she replies “of course”.  The Respondent representative put it to the Complainant it is the prerogative of management to raise such issues and the raising of same is not put to her by way of a threat and that AC took no steps whatsoever to exit the Complainant.  It was put to the Complainant that she did not send an email to AC to say the way he treated her was a disgrace, if that was what she felt.  It was put to her that if she came to regret her decision to resign, she had ample opportunity during the 4 weeks to revisit her decision to which the Complainant replies that personally she could not do that.  The Respondent representative asked the Complainant if she had discussed it with anybody before she tendered her resignation and she replied she had discussed it with her girls.

In the context of loss and mitigation, the Respondent representative exhibited an email dated 08/12/2021 in which the Complainant states she has been offered a part-time job but is taking a few weeks off and will then decide.   The Complainant did not wish to discuss this and declined to name the prospective employer. 

Summary of Complainant’s Case:

CA-000-49497-002 complaint pursuant to section 27 of the Organisation of Working Time Act, 1997

The Complainant’s life partner fell seriously ill on 27/04/2021 and he passed away on 01/05/2021. The funeral took place on 06/05/2021.  The Complainant was understandably devastated and consulted her doctor who advised her to take a period of sick leave for two weeks.  The Respondent was notified and when the Complainant returned to work on 25/05/2021 the medical certificates were produced and given to AC. 

When the Complainant received her pay slip for the month she was surprised that she had been paid for the two weeks sick leave.  She said so immediately to AC believing there to have been an error and his reply was “I paid you under the circumstances – I’m not that bad”.  The Complainant thanked him and she believed that it was out of compassion. 

Earlier in the year the Complainant had booked three weeks holidays for September.  The death of her partner changed that plan and she mentioned to AC in August that she intended to take only three days (1 week’s holiday).  There was a discussion and it emerged that AC had classified her period of sick leave in May as annual leave.  The Complainant protested, there was a discussion and AC agreed that “we would work something out”.   There was no further discussion on this matter.   

In direct evidence the Complainant confirms her annual leave entitlement to be 16 days per year.  The Complainant confirms the Respondent did not pay sick pay and that is why she was surprised to see she had been paid while she was out and raised it with AC.  The Complainant repeated many times that AC had said “I paid you I’m not that bad”. 

Under cross-examination the Respondent representative provided a schedule that showed that the Complainant had in fact been paid for 17.5 days for the year and not 16 as she would have been entitled to and asked that she verify said schedule.  It was put to the Complainant that AC was flexible in terms of annual leave and allowed a deficit to be carried forward.  When asked if she had taken annual leave at any time prior to April 2021 the Complainant could not remember so doing.   The Respondent representative asked the Complainant why she had not raised a complaint about this matter at the time and she responded by repeating again what AC had said quoted above: “I paid you I’m not that bad”.   

CA-000-49497-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

The Respondent submits the Complainant’s employment came to an end by reason of her having taken a decision to resign from the Respondent’s employment and she did so by tendering a notice of resignation to the Respondent Managing Director on 25/11/2021.  The Complainant did not advise the Respondent at that time or at any time until the complaint was submitted to the WRC that she was resigning on foot of mistreatment of her by the Respondent of any its employees.  The Complainant did not seek to invoke the Respondent’s grievance procedures in respect of the reasons for her resignation or in respect of her holiday complaint. 

The Respondent further submits it has been prejudiced by the fact the Complainant has failed to provide any written submissions in respect of this matter and in those circumstances can only rely on the correspondence issued on her behalf by her lawyers in respect of the narrative that she proposes to advance at hearing.  The Respondent further submits it is concerning that in circumstances were the complaint states that the Complainant had to leave her job “due to the conduct of my employer or others at work” the Complainant has not named the people she believes are responsible for her taking the decision to resign from her employment. 

The Respondent submits at all times during the course of her employment with the Respondent the Complainant had full access to the Employee Handbook, including the Respondent’s grievance and dignity at work policies. 

On 23/11/2021 the Complainant came to AC’s office with a request to change one of her working days the following week swapping her normal Tuesday with the Monday.  AC agreed to the request and a short general chat ensued with the Complainant.  The Respondent submits this was not a formal meeting and not a meeting arranged by AC.  Towards the end of this interaction AC asked the Complainant if she had any further thoughts regarding her plans into the new year on the basis that the Complainant was currently working three days and AC wanted to confirm if it was her intention to continue this working pattern or to change the number of days she wished to work.  This conversation was consistent with one that taken place the previous November when the Complainant had confirmed her willingness and desire to continue working three days a week for another year.

The following day 24/11/2021 the Complainant came to AC’s office wishing to speak to him.  She said she felt she was “being pushed out” and that she was being “pressurised to retire”.  The Complainant was assured by AC that in no way whatsoever was any pressure being put on her to make a decision to retire or even shorten her hours.  AC reassured the Complainant that any decision that she would have regarding her working hours or retirement in 2022 would be made entirely by herself of her own free will.  The issue of retirement was relevant because of the contract of employment provides that the Complainant was to retire at the age of 70 which age the Complainant was due to reach in December 2021.  The Complainant seemed to accept AC’s explanation to her that the conversation that occurred the previous day was an entirely innocent information gathering exercise for staff planning.

AC advised the Complainant that they would sit down early in the new year to copper fasten working arrangements for the following year.  The Complainant became confrontational concerning the requirement for a meeting in the new year.  AC advised the Complainant they did need to have a discussion regarding any frictions between herself and other staff and he advised her that a number of members of staff felt that they were “walking on eggshells” when dealing or interacting with her.  AC asked her that going forward could she please be aware of the tone and to have a softer approach in the way she was interacting with the rest of the staff.  The following morning 25/11/2021 the Complainant came to AC’s office and left an envelope on his desk.  The envelope contained a letter of resignation which provides as follow: “Please accept this letter as notice of my resignation from your company.  My last day of work will be Thursday 23rd Dec 2021.”

On receiving the Complainant’s resignation AC wrote a letter to the Complainant thanking her for her many years of service and outlining to her that she would be missed.  From the date of her letter of resignation on 25/11/2021 until her leaving date on the 23/12/2021 the Complainant did not advise AC or any other staff members of the Respondent that she had any grievance with either AC or with the Respondent company in relation to her decision to resign.  By letter dated 25/01/2022 CCK Law Firm wrote to the Respondent advising that they had been instructed by the Complainant regarding the termination of her contract of employment and that they were satisfied that her employment was terminated within the definition of constructive dismissal as defined in the Unfair Dismissals Act, 1977-2016. 

Summary of direct evidence of Respondent:

AC provides a brief history of the family business founded by his father in 1978 which he joined in 1983.  His two sons have joined him in the business which employs ten staff now making it a third-generation family business of which he seems justifiably proud.  AC states there were never any issues between them during the course of the Complainant’s employment.  AC states the Complainant was responsible for credit control and she also took customer orders and that she knew lots of aspects of the business. 

AC states retirement was not mentioned when they chatted on 23/11/2021 after she came to his office to advise she was changing her work pattern for the following week.  AC states that what took place was an innocuous casual conversation like many they would have had down through the years where they would have talked about their respective families etc.  AC states he was not pushing the Complainant for any decision about anything but she became very emotional, and he states he said to her that they could chat again some other time.    

AC states that the Complainant had a very different attitude the following day when they met.  He states there was aggression in her tone.  AC made reference to friction within the workplace and to arguments he had overheard and states he said there would be a requirement to sit down before next year to discuss further.  AC confirms he did use the term “people walking on eggshells.”  AC assured her nobody had made any complaints, but it was a small workplace, and he was aware of and could hear what was being said in the workplace.  AC states he said to the Complainant that going forward they would need to have a chat about the tone being used when she was interacting with staff.  AC states it is not true that he said to her that if she wanted to stay, she would have to tow the line.  AC states there had been a customer complaint in the past in regard to the Complainant, but he fully supported her and states “the customer was put back in his box.” 

Summary of cross-examination of Respondent:

It was put to AC that the meeting on 24/11/2021 was confrontational because AC had told her the previous day there were complaints about her.  This was refuted by AC and he states he made it clear to her there were no official complaints.  AC states he was trying to establish a more amiable working relationship between the Complainant and other staff.  AC was asked why he said that staff were walking on eggshells and he responded that he himself could hear everything that was going on as it is a small workplace. 

It was put to AC that he did nothing to de-escalate the situation and he states in reply that the Complainant’s letter of resignation was very clear and he just accepted it. 

CA-00049497-002 complaint pursuant to section 27 of the Organisation of Working Time Act, 1997

The Respondent submits in respect of the complaint of her holiday pay the Complainant by her own admission was paid for all her holiday time.  The complaint that she makes is that she took holidays after the death of her partner which were fully paid.  When she went to take holidays towards the end of the year, she had three days remaining of her holiday allowance.  The Respondent submits the Complainant was advised that she could take additional days as paid leave and that any deficit could be carried forward and dealt with at a later date.  The Respondent submits the Complainant has not established any bona fide claim in respect of the Respondent’s failure to provide the holiday pay that was due and owing to the Complainant. 

In direct evidence AC confirmed the Complainant had been paid 17.5 days annual leave and he confirmed an entitlement of 16 days.  AC does not recall any conversation taking place when the Complainant came back to work with the medical cert.  AC confirmed the medical cert was for four weeks and not for two weeks as submitted by the Complainant.  The medical cert is from 26/04/2021 to 25/05/2021.  AC states he paid her holiday pay for the whole time that she was out on a medical certificate as he believed it would be one less thing for the Complainant to have to worry about at that time and it ensured the continuance of money coming in for her.  AC states there was a discussion in August about annual leave and the Complainant advised him that she would only need three days.  AC states there was no reaction when he told her she had only three days left.

Under cross-examination it was put to AC that there was no great compassion shown by him and he deemed all her days as holidays without any discussion with the Complainant and that he should have discussed it with her. 

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Based on my observations of the demeanour of the witnesses at hearing I found the Complainant to be strong minded, articulate and not reticent at coming forward to speak her mind.  I found the Respondent to be equally articulate and I formed the view he is an employer/manager in the paternalistic style which is typical of many small family businesses but with an awareness of his responsibilities and obligations as an employer as evidenced by the regular updating of contracts of employment together with the provision to employees of a comprehensive employee handbook.     

It would appear that there was no history of amicus or discord between the parties prior to this and I find it regrettable that the employment relationship ended in the manner in which it did.  However, I am bound to consider this complaint in light of the sworn evidence of the parties and to apply the relevant law to the facts as presented to me.  I will consider the complaint bearing the reference CA-00049497-002 first in line with the sequence in which the complaints were heard on the day.  The Complainant representative requested they be heard thus, and the Respondent representative did not object. 

CA-00049497-002 complaint pursuant to section 27 of the Organisation of Working Time Act, 1997

The Relevant Law:

Pursuant to section 41(6) of the Workplace Relations Act, 2015 I have jurisdiction to investigate any complaint under the Organisation of Working Time Act, 1997 for a period of 6 months from the date of the referral of the complaint.  This complaint was presented to the WRC on 04/04/2022.  The cognisable period that may be investigated is from 03/10/2021 to the date of termination in the within case.    

I note that section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”.  Therefore, I may adjudicate on the period from 1st April 2021 to the date of termination on 23/12/2021. 

In the matter of Waterford County Council v. O’Donoghue[DWT0963] the Labour Court stated as follows:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year.  While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that court can only have regard to the leave allocated to an employee in the statutory period.”  [emphasis added]

In Singh & Singh Ltd and Guatam[DWT0544] the Labour Court held, relying on the decision of Lavan J in Royal Liver v. Macken[2002] 4 IR 428 as follows:

“From this judgment it is clear that where an employer fails to provide an employee with the requisite amount of paid annual leave the contravention of the Act occurs at the end of the leave year to which the leave relates.”  [emphasis added]

The within complaint spans the leave year 2021/2022 and the claim crystalises at the termination of employment on 23/12/2021.  I find that the Complainant worked for 8 months in total from 01/04/2021 to 23/12/2021.  The Complainant was on sick leave for one month the duration of which was covered by a medical certificate.  Accordingly, she would have continued to accrue statutory annual leave for that month.  The Complainant’s statutory entitlement is 12 days per year or 4 weeks.  Her entitlement during the relevant period is 9 days.  I find that I cannot identify any breach of the Act during the relevant period.  The plain fact is the Complainant was paid 17.5 days between end April 2021 and termination date of 23/12/2021.

For completeness and in the interest of clarity as there was much confusion about this claim on all sides as evidenced during hearing it is common case the Complainant had an annual leave entitlement of 16 days per annum calculated on a pro-rata basis as she worked a 3-day week.  This entitlement comprised her statutory entitlement together with long service benefit.  For the avoidance of doubt, it is not a situation that she did not receive her full paid entitlement as in fact she received 17.5 days.  The Complainant representative in his closing submission put forward the proposition that it was a breach of contract to allocate her annual leave days as sick days and submits this meets the contract test in the Complainant’s constructive dismissal claim which is dealt with below in the claim pursuant to the Unfair Dismissals Act. 

CA-00049497-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

The Relevant Law:

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act, 1977.    However, it is a term commonly understood to refer to that part of the definition in section 1(b) of the Act which provides:

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

(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.”

I am satisfied the definition of constructive dismissal set out above is the appropriate backdrop against which I will base my conclusions.  Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy either one or a combination of both of the following “tests”.

There are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled here, and these tests are known as the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee.  All other options including grievance procedures must be explored. 

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

In Berber v. Dunnes Stores[2009] 20 ELR, the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

In the English case of Western Excavating (ECC) Ltd v Sharp[1978] IRL 332 Denning J stated:

“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 of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate her contract. 

It is well established and a generally accepted proposition that an employee is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal.  This is clearly set out in Reid v.Oracle EMEA Ltd [UD1350/2014] where the EAT stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

I have regard also to the seminal EAT case Conway v. Ulster Bank Ltd. [UD474/1981] where it was held as follows:

“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate grievance procedure existed but the Appellant did not use it.  It is not possible for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

The Labour Court in Ranchin v. Allianz Care S.A.[UDD 1636] held as follows:

“In constructive dismissal cases, the Court must examine the conduct of both parties.  In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded on 23/11/2021 and 24/11/2021, and the conversations that took place between the parties on those dates.  The crux of the Complainant’s case relates to the discussions that took place on those respective dates and I have two accounts before me that are entirely at odds in most respects.  I am not in a position to definitively resolve the directly conflicting evidence of the parties in relation to the precise nature of the discussions that took place given that there were no other witnesses to the discussions apart from the participants.   Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by taking into account all other relevant factors and surrounding circumstances.    

The Reasonableness Test:

I am satisfied from the oral evidence adduced at hearing by both parties that the discussion that took place on 23/11/2021 between the parties was instigated by the Complainant as she wanted to advise AC that she was changing her working days for the following week.  I do not find the ensuing conversation on that day, regardless of which account I prefer, to have been an unreasonable conversation.  I find it would be reasonable for an employer to inquire of an employee what working pattern she proposed to work the following year as her working pattern seemed to involve many iterations during the course of her employment from working 5 days to 4 days to 3 days and she always seemed to have been facilitated in this regard.  I am of the view it appeared to be the type of employment relationship where the employee dictated the pace as regard to her requirements and the employer habitually acquiesced to those terms.       

Nor do I find it unreasonable that an employer might inquire of an employee who was approaching the retirement age provided for in the contract of employment between the parties, which she had signed, what her plans might be in that regard for the following year.  The mandatory retirement age was not enforced in the Respondent company as it was confirmed to me when I asked the question that there were employees who continued working beyond 70 years of age.  I find it would have been reasonable for AC to inquire of the Complainant if she intended to work on into the following year and I am of the view that in asking about her working pattern for the following year he had already assumed she would continue working past retirement age but likely sought confirmation of same.  I am satisfied it would have been a reasonable question to ask in the context of manpower planning for the coming year and I do not find that such a question equates to pressurisation or an attempt to push somebody out the door. 

Nor do I find it unreasonable that an employer should address the matter of discord or friction in the workplace on the basis of various interactions he himself had overheard regardless of which day this matter was discussed between the parties as evidenced from the differing accounts.  Any prudent employer would seek to address these matters before a formal complaint is made and he was making his inquiries on the basis of his own observation of interactions in the workplace and it appears he was not relying on any third party in this regard. 

Notwithstanding, it is apparent the Complainant took serious exception to these matters being raised with her and she decided to resign.  I accept the Complainant was upset when AC broached the subject of various interactions he had overheard between the Complainant and other staff in the workplace.  However, I cannot find the conduct of the Respondent in raising these matters with the Complainant meets the standard of being “an arbitrary, capricious or abusive exercise of managerial power” as described in Gogay v. Hertfordshire County Council [2000] IRLR 7030, so that it made it reasonable for the Complainant to resign. 

I find the Complainant has failed to establish she was constructively dismissed particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” as provided for at section 6(7) of the Unfair Dismissals Act.  I cannot find the Respondent acted in a manner which was so unreasonable as to make it impossible for the Complainant to continue in the employment. 

The Contract Test:

I must consider whether there has been a repudiatory breach of the contract of employment.  The Complainant seeks to rely on the holiday pay complaint to satisfy the contract test.  However, I respectfully submit there is no evidence to suggest the Respondent no longer intended to be bound by any essential terms of the contract of employment.  AC’s ill-judged endeavours at making life easier for the Complainant by paying her in full for the four weeks she was on a medical certificate during the time of her bereavement backfired spectacularly on him.  The Complainant’s contract of employment provides “the Company is not obliged to pay you during any absence on grounds of illness”.  (This contract predates the enactment of The Sick Leave Act, 2022).   

I am satisfied AC had the best of intentions when he continued to pay the Complainant during this very difficult period in her life.   However, it would have been appropriate to have explained to her the basis and the rationale for that payment when she thanked him rather than just brush it off in a jocular fashion when she raised the matter of the payment with him.  I do not accept the proposition that this misguided action by the Respondent in his attempt at ensuring an income stream for the Complainant during such a difficult time for her was a repudiatory breach of the contract of employment. 

Based on my careful consideration of the written and oral submissions, I find the Complainant has failed to discharge the burden of proof to support her claim that she was constructively dismissed for the following reasons.  There is no evidence to suggest that the Respondent no longer intended to be bound by any essential term of the contract of employment.  Having carefully reviewed all the facts as presented to me I cannot accept the proposition that the Respondent’s conduct was such that the Complainant could no longer be reasonably expected to put up with it so as to leave the Complainant with no option but to resign. 

Furthermore, the Complainant failed to ventilate her grievances prior to resigning.  There was a grievance procedure provided for in the Employee Handbook which the Complainant failed to invoke.  The Complainant representative submits there was nobody to raise a grievance to.  The Respondent representative submits it is not good enough to say the grievance procedure cannot be invoked because it is a small company.  I find it regrettable that the Complainant did not engage with AC perhaps even by sending him an email to tell him how aggrieved she felt if she was too upset to talk to him in person about it.    

This was an employment relationship that had endured for 22 years and AC states they were friends as well as employer/employee.  This is an employer who had advanced financial assistance to the Complainant’s daughter in order to purchase a house.  I am satisfied it would be considered reasonable for the Complainant to set out her grievances to the Respondent in the context not only of the employment relationship but also the friendship that seemed to exist between the parties prior to tendering her resignation to provide him with the opportunity to address them and in order to find a common-sense resolution.  It is an inescapable fact in this case that the Complainant resigned without engaging in any attempt at raising a grievance even informally and this does undermine her case.  I am mindful of the Labour Court in the case of Mr O v. An Employer (no2) [2005] 16 ELR 132 where it was held as follows:

“The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” [emphasis added]

The Complainant representative reprimanded the Respondent for taking no action to de-escalate the situation.  Conversely, it was put to the Complainant by the Respondent representative that if she came to regret her decision she had ample opportunity during the four weeks to revisit it with the Respondent.  The Complainant in reply states “personally she could not do that.”  I am satisfied the Complainant had taken umbrage and she had made up her mind that she was leaving.  I am satisfied nothing the Respondent could have said or done would have changed her mind even if he had sought to defuse the situation by asking the Complainant to reconsider her resignation.  I have formed the view that regrettably an impasse had been reached in the relationship between the parties at this time.

The Complainant’s notice of resignation was clear and unequivocal and in this again it was she who dictated the pace and resigned on her own terms.  She gave four weeks’ notice in a situation where the statutory and contractual obligations were eight weeks and this was accepted by AC. 

Finally, I find the fact the Complainant worked her notice is counter intuitive to the proposition that the Complainant’s position at work was so untenable that she had no option but to resign.  If the actions of the Respondent were so unreasonable that she had no option but to resign, it is implausible that the Complainant would work out her notice period.  The Complainant confirmed at hearing she worked her notice period apart from a 3-day Covid related absence. 

I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that the conduct of the Respondent was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. 

In the circumstances I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977.  The Complainant has not discharged the burden placed on her by the Act.  I am not persuaded by the Complainant that resignation was her only option.  Accordingly, I find that she has failed to establish she was constructively dismissed, and her complaint cannot succeed.

CA-00049497-001 complaint pursuant to section 8 of the Unfair Dismissals Act, 1997

For the reasons set out above I have decided this complaint is not well-founded. 

CA-00049497-002 complaint pursuant to section 27 of the Organisation of Working Time Act, 1997

For the reasons set out above I have decided this complaint is not well-founded. 

Contract test; reasonableness test; managerial prerogative;