ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043416
Parties:
| Complainant | Respondent |
Parties | Irene Kinsella | James Tomkins Garage Ltd |
Representatives |
| M.P. Guinness BL Kevin O’Doherty Solicitor O'Doherty Warren & Associates |
Complaint:
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-00053889-001 | 27/11/2022 |
Date of Adjudication Hearing: 02/05/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate her employment, or it was reasonable for the Employee to terminate her employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that she satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That is to say that the employer has conducted its affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the employer that is being 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.
In the case of Curtin -v- Primark UD 234/2003 the Labour Court clearly sets a high bar on those that resign and claim it as not voluntary. In that case the Labour Court found against a store Manager of a large store who should have been “…able to handle the kind of pressure that he alleges he was put under”.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 27th of November 2022) issued within six months of her Constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would therefore have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement, or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
In determining the level of compensation that should be awarded in Unfair Dismissal cases, the Labour Court in recent times has been critical of people who have failed to provide proper documentation to support alleged attempts to seek alternative employment and thereby mitigate their loss of income. The Court consistently relies on the EAT case of Sheehan and Continental Administration Company Limited (UD858/1999) which stated as follows: “A Claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work… The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I also informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential of a serious and direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation. The Complainant relied on the comprehensive submission outlined in the workplace relations complaint form. I was additionally provided with relevant documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that she was Unfairly dismissed in that she was forced to tender her resignation by reason of, what she says, was the unreasonable conduct of her Employer. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Summary of Respondent’s Case:
The Respondent had full representation at this hearing. At the outset it was made known to me that the Respondent was conceding that it had behaved unreasonably in that it had not dealt with issues and Grievances raised by the Complainant before she felt obliged to tender her resignation. In the circumstances no witness gave evidence on behalf of the Respondent company, and I was asked to solely look at the issue of financial compensation and mitigation. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. As stated, the Respondent conceded that Grievances and issues raised by the Complainant in the course of her employment had not been addressed by them for a five-month period from January to May 2022. It is noted that the Complainant did submit a formal Grievance regarding certain workplace behaviours in and around February 2022. These Grievances included a particularly worrying allegation of sexual harassment (including the sharing of grossly offensive images) in the workplace. I note that the Respondent is not conceding that any such harassment was occurring in the workplace, but instead accepted that it had failed its employee (the Complainant herein) by not accepting that a formal Grievance had been raised, and conducting an immediate investigation into said Grievance. I explained to the Complainant that the Respondent had accepted it’s failure and that I only needed to hear her evidence in connection with her financial losses attributable to the dismissal. I noted for her benefit that I am entitled to compensate for such losses. The Complainant had been working a three-day week with the Respondent company. I note that the short week arrangement suited the Complainant who was interested in furthering her career through a programme of studies in the area of HR. The Complainant’s Gross pay from the Respondent company was €341.04 per week. The Complainant had been out on sick leave at the time that she tendered her resignation. Her illness benefit coincided with the termination of her employment and the Complainant immediately went on to job seekers allowance. The Complainant took up alternative employment some fourteen weeks later. Much was made of the efforts made by the Complainant during the fourteen-week period and in particular the case of Sheehan and Continental Administration Company Limited (UD858/1999) was opened to me and which stated as follows: “A Claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work… The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” On balance I accept that the Complainant made reasonable efforts to find employment during the period of time immediately after she had been forced to tender her resignation. She certainly might have pushed herself a little harder, but I think in the overall scheme of things she did well to attend up to five interviews before securing viable alternative employment in the sector wherein she has experience. The Complainant was at a remunerative shortfall of €341.00 for each of the weeks she was looking for work. The Complainant’s new position is only for two days a week and secures a Gross income of €224.00 per week which is €117.00 less per week than what she had been receiving. I accept that the Complainant could possibly have looked for a second job to make up for the shortfall but must also note that the Complainant is hoping to finish a HR degree which will place her in a better position to secure more substantial employment from August 2023. Her studies commenced before her employment with the Respondent had terminated and she had organised her affairs and employment to allow for this fact. I accept that the Complainant has had some considerable disruption to her life by reason of the Respondent’s conduct and the loss of the secure employment in an area with which she was familiar. The arrangement she had with the Respondent had also allowed the Complainant to complete her studies and she was unlucky not to be able to achieve the same work/study balance she had enjoyed while working with the Respondent. I could not be critical of the Complainant for finding a position which closely resembled her previous situation. The Complainant agreed with me that she was hopeful of securing better employment when she completed her degree in August of 2023. I have calculated the Complainant’s loss in the following way: 14 weeks at €341.00 is €4,774.00. 40 weeks at €117.00 shortfall is €4,680.00 |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00053889-001 - The Complainant was unfairly dismissed and I award her €9,454.00 compensation for Financial loss.
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Dated: 12/06/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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