Complainant

Respondent

Parties

Bernadette  Brady

Bbowes T/A O ‘Hehir’s

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self

Terry MacNamara IBEC

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-00053014-001

28/09/2022

This case is concerned with a complaint of constructive dismissal. The Complainant was employed mainly in the bakery part of the operation with some shifts in the café from 14/09/2019 to 09/09/2022 finishing on an hourly rate of pay of €11.50 for 30 hours per week.  She was out of work without pay from December 2021 to May 2022 as described in her evidence. Notice of her resignation was submitted on 26/08/2022. The employment terminated on 9 September. Compensation was sought by way of redress, should it arise. The employer offered re-employment at the hearing as the appropriate redress, should it arise.

Summary of Complainant’s Evidence-Day 1

The Complainant gave evidence that on 20th December 2021 she was working in the bakery when she was approached by a manager A who was loud and aggressive and told her to put on a mask or a visor. She made a complaint but the only issue that was dealt with was about her wearing the mask or visor and nothing about how he spoke to her on that day. The issue was taken through the grievance procedure and finally resolved at the end of April 2022, and she went back to work in May of 2022. When she returned, she began noticing there were problems, and nothing was being done about them. Other staff spoke about the same problem, which was a new manager or supervisor, but nothing was done. She approached the local manager about her pay. She was no longer receiving a top up payment from social welfare, so she approached different managers to look at her wages. At one stage she went to the shop manager and she understood that they would be looking at a pay rise and would get back to her. She left it a week or two and approached the area manager who said that it should be possible to give her a pay rise and she carried on working sometimes taking on extra shifts. She found it very hard to work with the new manager/supervisor stating that she was not sure of her title whether it was a manager or a supervisor. She sought extra shifts working in the restaurants and she did get some extra hours which she recalled as half a week in the restaurant. The Complainant said that in August she asked for a change in her roster hours explaining that they were having difficulties with paying the car tax after she had been out of work off the payroll for some time. The change was to enable her to get the bus which she further explained was that she was seeking a change in her hours to start at 8.30 and finish at around 6 o’clock at the latest. This was point blank refused. It was her understanding that the person who replaced her was given the rosters which she had asked for and had been refused. There was no sign of a pay increase although she had been told that it should not be a problem and had spoken to different managers. She and others had complained about the supervisor/manager, but nothing was done about her which she compared to herself being put off the payroll and the way she was treated. She said that she was offered a pay increase of a euro per hour after she gave in her notice, but it was too late then. When she said she was leaving the shop manager spoke to her and she explained why she was leaving to which the manager said, ‘That’s all I can do’.

In response to the IBEC submission, the Complainant replied that her original complaint was about the way she had been spoken to in December 2021. She stated that the area manager did not contact her on the 1st of September offering her a pay rise as claimed by the Respondent, that it was the 7th of September on her second last shift when she was due to finish on the 9th of September where he rang her on the shop phone. He offered her a euro per hour which she had been seeking since June. She had been let down so many times and she felt that another person was also saying that she was going to leave and that the Respondent then felt that they had to do something about the pay. She referred to the control measures printed in the submission and stated that she was operating that part which said that you did not need to wear a mask when you were working behind a barrier. She was working behind a barrier on her own and there was nobody else working in the area. When she handed in her notice, she said that she wasn’t happy, she felt she was not being taken seriously, that they wanted to push her out and she was being fobbed off, again stating that she had been looking for a pay rise since June and things were going wrong under the new manager and that person did not seem to be able for the job. In response to the chair both on the first and second hearing days the Complainant agreed that the points of her complaint leading to her decision to leave the employment and her claim of constructive dismissal were as follows:

·         That the grievance procedure had not dealt with her complaint about the way she was spoken to (in December 2021) in relation to mask wearing. Generally, that she had not accepted the outcome or that she was not paid while she was off-which she was told was leave without pay after she returned to work-she had never agreed to this.

·         That she returned to work and in June asked for a pay increase and that nothing had happened.

·         That she made complaints about another person, nothing was done, and she compared that to the way in which she was treated in December 2021 when she was removed from the payroll.

·         That she asked for additional shifts in the restaurant and she got very few of them.

·         That she asked for a change of roster times but was refused and that another person who replaced her did get those same rosters.

In response to the Respondent representative about the date when she was informed of a pay increase, the Complainant clarified that she had submitted her resignation on the 26th of August 2022 but where she referred in her complaint form to the following week as being when she was offered the pay increase, she meant the week after that and two days before she was due to finish.

 Day 2 submission and evidence by the Complainant

The Complainant disputed aspects of the IBEC submission in terms of dates in particular and any suggestion that she or her partner had engaged in social welfare fraud. Her responses are reflected in her statement of case and answers under cross examination.

In cross examination the Complainant agreed she had received a pay increase in November 2022. This was because she had taken on extra responsibilities and they had not received a pay rise for two years. She explained her social welfare situation and she had shown documentation to Sarah the local manager when asking for a pay rise and that she had spoken to the area manager about her pay on 18 August.

It was at a meeting with the HR manager Freda in late May that she raised the loss of pay while she was off saying she was not happy about it. After that meeting, she sent a text to the MD. He met with her at the shop in June and she also spoke to him about her health and safety concerns regarding the new bakery manager. He observed those issues himself. They spoke about her period of non-pay and he said to leave that with him. She never heard from him again.

Also in June the area manager spoke with her about the manager and she understood that he had given that person a verbal warning but there was no change in her behaviour or conduct.

The Complainant confirmed that she was offered the opportunity to put in a grievance in a message from the local manager on 10 August and did not do so. She said that she decided not to put in a letter about the supervisor/bakery manager because the last time she complained (about the area manager), she was suspended and she did not know what would happen if she complained about the bakery manager.

Regarding her request to change her roster in August 2022 she spoke about problems with her car tax on 25 August when she contacted the shop manager to say she would be late for work due to checkpoints. Accepting that her request for a change of rosters sent in a message looked like it was a permanent change she spoke with Sarah a couple of days later and believed she made it clear that it was only a temporary change she was looking for. She detailed how difficult and expensive it was for her to get to work without a car. What she wanted was not a massive change. IBEC asked if she was aware that the person who covered her shifts for a period was someone who worked in different shops covering when they were short travelling some distance? The Complainant seemed unaware of that persons role and circumstances. In response to the Chair the Complainant confirmed that it was after she left that she heard about her replacement working the roster hours she asked for.

Regarding the bakery manager she said that she spoke to the shop manager, the area manager and the MD about her and that the MD sat with her in June and he also made negative comments about the bakery manager when sitting beside the Complainant. She gave some details of the issues she raised around hygiene and work. It was not just she who complained about that person-other staff also complained.

The Complainant accepted she did receive a pay offer of €1 but it was too late that she had made up her mind. She did not trust the Respondent anymore.

Asked did she know that the person who replaced her was someone who worked in various locations providing short term cover she confirmed that she was aware the person worked in other locations on a temporary basis.

Regarding her efforts to obtain employment the Complainant spoke about her efforts to obtain work including doing a barista course but that she encountered great difficulty and was not successful at any interview. She was still depending on public transport to get to any work. She lives in a very small area with not many jobs. The nearest town is some distance away. She registered with INTREO. The Complainant criticised the reference she received that it did not reflect her skills and experience with the Respondent-she had performed higher duties on many occasions which was the reason she received the pay rise in November 2022. The Complainant has not worked since leaving the Respondents employment.

In response to IBEC, that she was seen in the café/bakery by other staff wearing a uniform after she left the employment which suggested that she had in fact worked since-the Complainant related that to the barista course.

In summary the Complainant said that no matter what she did (about her issues) she was ignored or fobbed off. She again said that she had not engaged in any social welfare fraud and objected to this being implied by the Respondent representative twice at the hearing.

Summary of Respondent’s Case-Day 1

The employer’s submission to the hearing on this day dealt extensively with the circumstances around mask wearing and the Covid-19 virus commencing in March 2021 and the related work safety protocol. The submission also addressed the events of 20th December 2021 when the Complainant was observed not wearing a mask and the exchanges that occurred around that time including a meeting on 21st December 2021. Details were also provided of correspondence in January and February 2022 including the lodging of a grievance, the health and safety obligations of the employer related to Covid, the outcome of grievance which concluded with a meeting on 20th April 2022 at which the Complainant was invited to return to work.

The submission stated that the Complainant returned on the 3rd of May and there was a follow up meeting on 26th May 2022; that on the 18th of June 2022 the Complainant sought a pay increase; and on the 26th of August 2022 the Complainant resigned giving two weeks’ notice stating that this was due to distress and financial hardship put on me, I can no longer work here. On the 1st of September the area manager spoke with the Complainant and asked her to reconsider her resignation and offered her a pay increase of one euro per hour but the Complainant chose not to reconsider her resignation or utilise the grievance process and her employment ended on 9th September 2022. In summary, the Respondent’s argument in their submission was that they neither acted unreasonably nor breached the terms and conditions of employment such that the Complainant could legitimately resign and seek relief for constructive dismissal. When a written grievance was submitted the Respondent initiated a grievance investigation however the Complainant did not give the Respondent an opportunity to work with her at the latter stages after her return to work in 2022. She resigned from her employment without reconsidering the offer of a pay increase or withdrawing her resignation and utilising the grievance process. The history of the grievance in relation to the refusal to wear a face mask was referenced and a failure to provide any medical evidence indicating a medical condition or disability which would inhibit the ability to wear a mask. In conclusion the Respondent engaged with the Complainant on the requirement to wear a face mask. In relation to placing the Complainant on unpaid leave in December 2021 while this was a change to the terms of employment it did not breach the employment contract or terms of employment. Instead of accepting the Complainant’s refusal to abide by the mask policy, a repudiation of her employment contract, the Respondent reasonably placed the Complainant on a period of unpaid leave.

Day 2

Summary of the second day respondent submissions and witness evidence

The second submission set out a chronology of dates and discussions with the Complainant regarding her pay, her complaints against the bakery supervisor and her resignation and why the actions of the employer did not justify a complaint of constructive dismissal. The Grievance procedure was used to the appeal stage to hear her grievances as submitted in January/February 2022. The Complainant did not utilise the further stage of an appeal to the WRC. The Complainant was offered the opportunity to raise a grievance about the bakery supervisor but declined to do so. An offer of a pay increase was made in early September, but the Complainant declined the offer and in any event a failure to offer a pay increase is not a reasonable basis for a complaint of constructive dismissal. There was no breach of contract in the refusal to change the roster hours requested in August 2022.

Summary Witness 1-Freda Loftus

The witness explained that she is the HR Manager with the Respondent. On 26 May she had a follow up meeting with the Complainant after her return to work. Asked what was discussed she said that the Complainant spoke well about the atmosphere, that she was glad to be back. She did ask about her period of time off and was told that this was unpaid leave.

The witness said she was aware the Complainant spoke to the manager about extra shifts wanting these to be paid cash in hand and was told this was not something they did.

The Complainant asked why the Respondent was in breach of their own contract with the reference given to her-not setting out her experience. The witness said she was not aware of any commitment in the contract to provide such details.

Asked by the Chair where the issue of pay for the period out of work was addressed in the final appeal decision the witness explained she was not at the appeal hearing meeting that she had prepared the note for the MD. She cannot recall where it was addressed.

In response to the Chair, the witness said she was not made aware of any inter employee issues in the local shop. In redirect, the witness said that she was not made aware of any such issues at the meeting on 26 May or after that date.

Summary Witness 2 Sara Tearall-shop manager for eleven years

The witness knew the Complainant through her work in the shop for three years. In May 2022 the witness attended a return-to-work meeting with the Complainant along with two other managers. The Complainant was happy to come back to work. She was informed that there was a new bakery supervisor in place for four months. At a later stage there were issues-the Complainant was not getting along with the bakery supervisor. Asked what kind of difficulties, she described them as personality differences. Health and safety issues were not mentioned. She referred to a meeting in July where the Complainant was not happy with who she was working with. The witness asked her to put it in writing so it could all be sent to HR. After that she was waiting for a letter. When she sent a message to the Complainant about putting it in writing she replied she would not do so. After that she heard nothing more about issues with the supervisor and took it everything was okay.

Regarding the request for pay rise, the witness said she passed that on to the area manager-it was above her pay grade.

Regarding the resignation, she received it on August 29th. The Complainant was a good worker, she didn’t want to lose her so she asked her would she reconsider but she said that she had another job to go to.  

Asked about the person who replaced the Complainant and her roster hours, the witness said that person was a relief worker covering various places including one she named.

Asked did she see the Complainant in the shop after she resigned, the witness said yes, she was down in the bakery talking to the other girls there and she was wearing a uniform with a Coffee 45 logo.

In cross examination by the Complainant the witness agreed she did see social welfare documents shown to her by the Complainant when she asked for a pay rise. She does not recall making a photocopy of them and did not forward them to the area manager. Asked when she spoke to the area manager about her pay rise request, she replied the same day.

In cross examination by the Complainant, the witness denied being shown the work area by the Complainant or that health and safety issues were raised by her and she was not shown photographs of the area by the Complainant. She agreed that another member of staff had raised issues about the supervisor but these were different issues from those raised by the Complainant. Asked if she had ever seen or heard the supervisor shout at staff, the witness said no.

In response to the Complainant, the witness agreed she had received a call from her in late August about a garda checkpoint which would make her late for work.

Asked why she did not even consider her request for a shift change, the witness said she was not able to do so that there would be nobody to cover some of the time and she could not change the times. No, she did not ask anyone else about the request. She thought the change requested was for longer than a couple of weeks.

Asked by the Chair what she understood the problem to be between the bakery supervisor and the Complainant, the witness replied she thought they were personality issues, that they did not get along. Yes, she had spoken to the supervisor and she had her issues with the Complainant. There was no verbal warning given to the supervisor and no, she had no notes of any of the discussions.

In redirect, the witness was asked why she did not discuss the roster change with anyone else. She replied that the Complainant asked her to keep it between themselves.

Summary Respondent Witness 3-AS -Area Manager for the Midlands shops.

The witness explained that he is working with the Respondent since 2004 in a variety of roles working his way up through the business in different locations.

He visited the location in question every one or two weeks at least. Because of his experience in many roles sometimes he would provide cover at a shop filling gaps especially since Covid. Asked about the Complainant as an employee, the witness described her as very hard working passionate when working. He knew her only at work.

The witness spoke about the return-to-work meeting in April. This was held to clear the air to ensure there were no hard feelings. The Complainant spoke about being very happy to come back.

After the return to work he received a call from the shop manager that the Complainant was looking for a pay increase, so he called to speak to her directly. He explained to Sara there was an embargo on pay in the Company at that time post Covid. She told him of the Complainants financial difficulties and that she had approached her with a request for extra shift in the restaurant which she wanted to be paid cash in hand. The Complainant was told this was impossible-that it could not happen.

The witness said that nobody else got a pay increase in the next three months. He heard about the Complainant resigning in a text message from Sara. He heard she was leaving for another job so he went to Mr O Hehir and explained that the Complainant was a valuable employee, that he did not want to lose her, that she was a really hard worker so Mr O Hehir approved a pay rise of a euro per hour. When he spoke to the Complainant, she said she had another job to go to-cash in hand. They spoke again about changing her mind but she said no.

Regarding the issues with the bakery supervisor, he thought there different opinions about how things should be done. In cross examination asked if he had told the Complainant he had given the supervisor a verbal warning, the witness said he had no such recollection. (There was a significant exchange of different evidence between the Complainant and the witness on this point).

The witness absolutely denied telling the Complainant that he was waiting on clearance from HR for a pay rise. He had checked again in August was there any change about the embargo but the situation was still the same.

Respondent Witness 4 -Michael O’Hehir

The witness is the owner of the company. There are twenty outlets in the group, some of which serve food while others are just bakeries. In all they employ approximately 280 people at any time.

Evidence was given of conducting an appeal hearing of the Complainants grievance submitted in 2022. He met with the Complainant in the bar in the Longford Arms. He was the last one in the line in the procedure. She started to go through everything about the mask wearing. Up to that point she had been a good worker only for that incident. He told her she was welcome to come back. The Complainant started to talk about payment for when she was off. He told her there was no way she would be getting paid for that time. It was her call.  She agreed she would come back. After the meeting with Freda on 26 May he was told that everything was okay that she was happy after returning to work and as far as he was concerned that was the end of it. Then he got a text after which he arranged to meet her when he called on 6 June. The Complainant spoke about her family circumstances and the pay for the time she was off. He told her it would not be paid and that was final. He heard no more about it after that.

Asked if the Complainant had raised any issue with him about the bakery supervisor that day-the witness said he did not recall it.

Regarding the pay rise he knew that she had handed in her notice. The area manager rang and asked about giving her a pay rise-that he didn’t want to lose her. They had a long discussion and he agreed that she could be offered €1 per hour of an increase. Asked about wage increases generally to other staff during that time, the witness said they discuss wage increases all the time-referring to weekly management meetings. Sometimes about keeping people-people are leaving all the time-as time went on it has become more difficult to retain people. Asked if the question of a pay increase had been raised with him before September 2022, the witness said he could not recall that it had.

Conclusions

In considering the evidence of the parties and the related submissions and counter arguments I have arrived at the following conclusions in relation to the elements of the employers conduct/treatment of the Complainant which she put forward as the reasons for her resignation and which, by extension she maintains the Respondent should be held responsible for to the extent that they justify her complaint of constructive dismissal.

1.      Unpaid suspension/Leave without Pay. This issue was addressed through the employer grievance process including the appeal to the MD. There was no precondition that she must accept the outcome before returning to work. Accepting that she did raise the matter of the pay at her meeting with HR in May and at the appeal hearing in April, she did not pursue the matter again formally after she received the outcome of the appeal. The term did not pursue refers to utilising the grievance procedure which provided for a referral of an unresolved grievance to the WRC. At the hearing, the Complainant made it clear she was not happy with the outcome of the grievance hearings and not only the pay element. There was, however, no obligation on the Respondent to consider the matter further internally following the final appeal-either the outcome of the grievance process generally or the question of non-payment. The evidence of the witness -Mr O Hehir is credible and consistent on his part-that when the Complainant sought to receive pay for the period she was off the roster and the payroll at the appeal hearing in April and again in June-he refused emphatically. That he would have left the possibility of some payment hanging in the air is considered very unlikely indeed.

 Aspects of their handling of the grievance were less than satisfactory i.e., not specifically addressing the suspension or removal from the roster/payroll in the appeal outcome and not notifying the complainant of her right of appeal. I would be concerned about an appeal hearing being conducted in a hotel bar with no notes being taken to record the discussion. However, as she had recent access to a copy of the grievance procedure having received a copy in January 2022 and she had used it over a period of months in that year, the onus was on the Complainant to pursue the matter further through that process if she wished to do so.

2.      Conflict with supervisor/bakery manager. Beyond noting that one part of the Complainants grievance after December 2021 was that a promotion had been promised to her, suggesting as it does some annoyance at the filling of the promotional vacancy during her absence, the validity or otherwise of the complainant’s dissatisfaction with the person appointed are not under investigation in this process. That she complained about that other person is accepted and that she complained to more than one manager/supervisor is also accepted. However, and this conclusion again relates to the failure of the Complainant to utilise a procedure, on this occasion she accepts that she was specifically offered the opportunity to submit a grievance in writing and she declined to do so based she says on her suspension in December which she maintains was solely because she complained about the area manager. Even a cursory examination of the documentation related to the removal of the Complainant from rosters and therefore the payroll in December 2021 indicates that the decision to do so was not solely related to her complaining about the area manager-her own conduct was also at least part of the equation at the time. In relation to this issue, there is again some criticism of the Respondent in that it was evident that neither the local or area management endeavoured to resolve the issues between the two members of staff informally as required by their own policy. However, it was the Complainant who was the one complaining and it would be disproportionate to hold the employer responsible for her decision not to pursue the grievance when offered that opportunity., especially when the reasoning behind that decision put forward at the hearing is not fully accepted.

3.      Delay in dealing with her claim for a pay increase. I find the evidence of the Complainant more credible than that of the Area Manager on this aspect in that I am satisfied that she did understand that her claim for a pay increase was, at the very least, under active consideration somewhere in the employment before September. That she had a legacy of financial difficulties related to the changes in her social welfare payments and the extended period of lay off must be accepted at face value. The evidence of the area manager that there was a complete embargo on pay rises following Covid was contradicted by the evidence of Mr O Hehir where he made it clear that they considered each situation on its own facts including the loss of staff to other employment due to the competition for workers generally. It would appear that the area manager only took the claim seriously when the Complainant said she was leaving. Given that her claim was conceded at that point and given that she maintains that she had no alternative work to commence at that time, that a late offer of a pay increase would be grounds for a successful complaint of constructive dismissal is unreasonable as well as invalid as aground for a constructive dismissal. It is of note that the reason for seeking the pay rise was explained as being due to changes in the Complainants social welfare entitlements which resulted in some financial hardship. In that context the offer of an increase of €30 per week was not a minor change and represented some offer to resolve the problem of someone who would, according to her own evidence be otherwise unemployed. And remains unemployed. In general, the argument made by IBEC that a failure to grant a pay increase does not represent a fundamental breach of contract in this case is accepted.

4.      That she sought additional shifts in the restaurant but received very few. As long as the minimum contractual hours contained in the contract were provided and paid for, there can be no basis for this point representing a basis for constructive dismissal.

5.      Refusal to change her shifts to accommodate the use of public transport instead of driving to work. Allowing that the Complainant did experience financial difficulties and could not afford to keep a car on the road in late August early September to drive to and from work, there was no obligation on the Respondent to fundamentally change her hours of work to facilitate the use of public transport. The evidence that this was to be a temporary arrangement is not credible when the Complainant spoke of financial hardship on the one hand and was leaving a job where she was, albeit late in the day, offered a pay increase which would have alleviated that hardship. Moreover, and more significantly the alternative employment which she has sought revolves around her having access to public transport to and from any new positions in employment which belies any possibility that her proposal was sought and intended by her only a temporary arrangement. The evidence that the replacement arrangement operated for several weeks to facilitate a stand in cover travelling some distance is accepted as credible.

Finding

Based on the forgoing conclusions the case of constructive dismissal made by the Complainant does not meet the contract test which is the well-established one appropriate to the circumstances and basis of this complaint: ‘Conduct which is a significant breach of the root of the contract of employment, orwhich shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.’

Western Excavating [ECC]v Sharp [1978] IRLR332

There was quite simply no evidence presented to support the contention that the employer was in any way or at any time between May and August 2022 trying to push the Complainant out of the employment. In general it is regrettable that the parting of the ways occurred in this instance as the Complainant was evidently held in high regard in terms of her work performance when at work. It would appear however that from the time she returned to work in May 2022 she was repeatedly complaining and just plain dissatisfied with her employer and her employment.  There is a significant difference between being unhappy or dissatisfied and sustaining a complaint of substance or procedural unfairness amounting to constructive dismissal for which the employer is to be held wholly or mainly responsible.

CA—00053014 The complaint of constructive dismissal brought by Bernadette Brady against Bbowes T/a O Hehirs café is not well founded and accordingly is dismissed.

Constructive Dismissal