Complainant

Respondent

Parties

Áine  Fitzhenry

Tullow Childcare Association Clg 'Tots To Teens Tullow'

Representatives

Mr B O’Connor BL instructed by   O'Gorman Begley Solicitors

Ms R Mallon BL instructed by Gleeson McGrath Baldwin LLP Solicitors

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-00051287-001

23/06/2022

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

CA-00051287-002

23/06/2022

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

CA-00051287-003

23/06/2022

The issues in contention concerned the alleged Constructive Dismissal of a Creche Manager by a Creche/Childcare facility with related Payment of Wages and Terms of Employment Information complaints.

The employment began on the 3rd February 2014 and ended on the 25th February 2022.

The rate of Pay was stated to be €730.00 per week for a 40-hour week.

The Complainant began with the Respondent in February 2014 and progressed on promotion through various positions until finally appointed Manager in September 2020. The Complainant gave an oral testimony. Her Spokesperson was Mr. B. O’Connor BL.

Her complaints were

1:1       Unfair Dismissals Act, 1977 - 00051287-001

The Complainant was appointed Manager in September 2020. Her rate of pay was promised to her as being “managerial” and separate from the main body of staff.  Despite this, she did not receive the Loyalty Bonus payments that were awarded to all the staff including her immediate subordinate the Assistant Manager.

Despite numerous meetings and conversations with the Chairperson of the Board and other Board members the Wage issue remained outstanding. In addition, the Covid pandemic struck and there were numerous staff shortages -all adding to the stress levels of the Complainant.  She had proposed the closure of the “Baby Room” as an economy measure but this was publicly rejected by the Board at a Staff meeting. This completely undermined her role and status as the Manager. This pattern of negative behaviour by the Board towards the Complainant was continued.

On the 20th of February 2022 the Complainant, in frustration, contacted the Board to state that unless her salary was meaningfully addressed, she would have to resign.

Nothing was forthcoming by way of reply and she resigned on the 25th February 2022.

1:2          Payment of Wages Act, 2006 – CA- 0051287-002

The Loyalty bonus due to the Complainant was €2.25 per hour since the 19th August 2021 – in line with increases paid to all other staff. This was never paid to her, leaving her with a shortfall of some €3,150 to the end of employment. The argument that as she was a Manager and thereby not eligible was false as other Managerial staff received the payment.

1:3         Terms of Employment (Information) Act, 1994 CA-0051287-003

On her appointment as Manager in September 2020 she did not receive a statement outlining her new Terms and Conditions. She had made numerous requests, in vain, to the Board.

1:4        Cross Examination

Ms Mallon BL for the Respondents queried the approach of the Complainant to the salary negotiations and the fact that the Complainant may have been actively seeking other employment before her resignation. The issue of the Baby Room closure/non closure was discussed. The issue of videos taken in the Creche was also raised as was the time off/early leaving of the Complainant on occasions.

These issues were resolutely denied by the Complainant. If any issues of early leaving arose, they had to be seen in the context of the absence of any regular breaks by the Complainant due to staff shortages.

1:5       Summary

Mr O’Connor BL summarised the Complainant’s case as being primarily about the proper rate of pay for the Manager’s position and the denial of the Loyalty Bonus to the Complainant. In addition, the overt undermining of the Complainant in regard to the Baby Room was clearly a serious public diminution of her status and position. These were clear supporting grounds for a Constructive Dismissal case.

The Payment of Wages claim was self-evident and the Terms of Information complaint was clearly in the Complainant’s favour.

The Respondent submitted a Written submission supported by Oral Testimony from the Chairperson, Ms AD (for some of the period). Ms R. Mallon BL was the chief spokesperson.

2:1       Unfair Dismissals Act, 1977 - 00051287-001

Ms Mallon presented evidence from meetings and correspondence that the Complainant’s main source of concern was her salary. E mail of the 12th November 2021(from the Complainant) and an email of the 16th December 2021 (from Mr EMcG of the Board) were exhibited. It was abundantly clear that the salary was the main subject of debate. The Complainant had been offered an annual salary of €39,000 but she had declined in favour of remaining on an Hourly rate.

On or about the 15th December 2021 the Board’s representatives had met with the Complainant to discuss issues. It was felt that the new Structures could be agreed in the New Year that might address the Complainant’s issues. However, the Christmas period had intervened and the Board had not fully decided their position.  It was mentioned in passing that a Voluntary Board has, unfortunately, some cumbersome decision-making procedures that can delay matters.

The Complainant had resigned on the 25th February 2022. This was entirely peremptory and precluded any further discussions.

In essence the Complainant was the Manager and being paid an annual managerial salary was entirely appropriate. Her instance of remaining on an Hourly rate was not helpful.

The Board did not in any way wish the Complainant to leave their employment and were sorry to see her go.

Ms Mallon Bl pointed to the standard Legal tests for Constructive Dismissal (supported by cited well known case Law) i.e., Unreasonable Behaviours and Breach of Contract. None applied successfully to the Complainant and the case had to fail.

2:2          Payment of Wages Act, 2006 – CA- 0051287-002

The Respondent pointed out that the Payment of Wages Act, 2006 deals primarily with Deductions from an employee’s wages not with negotiations regarding a possible increase. There had been no Deductions, as set out in Section 5 of the 2006 Act, from the Complainant’s wages.

Accordingly, the Complaint has to fail.

2:3         Terms of Employment (Information) Act, 1994 CA-0051287-003

The Respondent accepted that there had been a very minor technical breach of the 1994 Act following the Complainant’s promotion.

It did not warrant any significant redress.

2:4       Cross Examination

Mr O’Connor Bl crosse examined the Respondent Witnesses -primarily Ms AD.  The questioning concerned the issue of the Baby Room and the very anomalous situation that the Board had put the Complainant in by denying her the Loyalty payments that had been paid to other staff and especially h Assistant manager. Ms AH had replied that the manager position was an Annual Salary arrangement and the Board had at all times tried to accommodate the Complainant.

2:5       Summary

The Respondent summarised the case as completely failing on the Constructive Dismissal grounds. If a Wage increase is not agreed it is not an accepted Ground for a Constructive Dismissal claim.

The Payment of Wages claim was not appropriate and the Terms of Information complaint was so insignificant as not to warrant only, at best, minimal token compensation.

It was also pointed out that the Complainant had made no little effort to mitigate her losses following the ending of the employment.

3:1        Unfair Dismissals Act, 1977 – CA: 00051287-001

3:1:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

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

 The reasonableness test assesses 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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive 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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However, Legal matters notwithstanding, all cases rest on their own particular evidence and unique factual basis. This will be considered below.

To assist the Legal Tests for constructive Dismissal will be used for guidance.

Consideration of the evidence

3:1:2           Constructive Dismissal Test No I – Breach of Employment Contract by either side.

In plain English this has to be taken to mean that the Employment Contract was fundamentally breached – the breach has to go to the “Root of the contract” - in general this is taken to mean that pay or wages are not being paid or work is not provided to the employee. It has to be very serious indeed.

In this case there was no suggestion that wages were not paid, although the amount of an increase was the subject of a dispute. All entitlements, holiday pay etc were paid. The evidence both Oral and in written submissions did not point to a fundamental breach of the Contract.

As a test for Constructive Dismissal, it cannot be in the Complainants’ favour.

3:1:3         Constructive Dismissal Test No 2 – Unreasonable Behaviours by either side.

Again, in plain English this has to be seen to be very bad behaviours indeed by either side – asking an employee, for example, to do work of a demeaning nature way outside their normal duties. It can also, for a further example, include repeated Bullying or Harassment of an Employee.

The evidence presented in this case did not show any really bad behviours by either side – the Complainant felt that she had been publicly undermined in regard to decisions regarding the Baby Room opening/closure. However, to an outside Observer such as the Adjudicator this situation, while upsetting to the Complainant, did not qualify as so bad as to justify a resignation.

The main issue was the Salary position of the Manager and the non-Payment of the Loyalty Bonus. The delays on the Respondent Managerial side in dealing with the issue were certainly irritating to the Complainant but could not be seen as strong justification for a Resignation.

On overall review the Unreasonable Behaviours Test is not in the Complainant’s favour.

3:1:4        Constructive Dismissal test No 3 - Use of Procedures by either side.

It was clear that the Complainant was in active communication with the Board regarding her Salary complaints. To be strictly precise no formal employment complaints, Grievances etc were every lodged by the Complainant. An industrial relations dispute could have been referred to the WRC for example. However, in view the small size of the Organisation and the open manner of daily communications this Constructive Dismissal Test is best seen as noteworthy but not crucial to this case.

3:1:5        Summary of Constructive Dismissal case

On the basis of the review of evidence set out above and the Three tests mentioned the case for a Constructive Dismissal has not been successfully made out.

A Constructive Dismissal has not been proven is the Adjudication conclusion.

3:2      Payment of Wages Act, 2006 – CA- 0051287-002

Legal position:  Section 5 of the Payment of Wages Act 2006 refers to Deduction from wages due. The Act is quoted below.

Regulation of certain deductions made and payments received by employers.

5.—(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

In this case there was a dispute regarding a potential wage increase and a proposed Salary Structure/Annual or Hourly paid. The failure to reach agreement on the increase did not result in Deductions from the current pay of the Complainant. Legally the case cannot proceed as no deductions were made. Not paying /agreeing a future increase is not a case for the Payment of Wages Act,2006

The Complaint has to be seen as not having a proper legal basis and has to fail.

3:3         Terms of Employment (Information) Act, 1994 CA-0051287-003

There was no difference of opinion on this complaint – a technical breach had taken place regarding the failure to give a written statement of the new Managerial position of the Complainant on her promotion in August of 2020.

However, the breach is minor and limited redress of €250 is being awarded.

Constructive Dismissal, Payment of Wages, Terms of Employment information.