Complainant

Respondent

Parties

Malgorzata Lejza

Mercury Food Distributors Ltd t/a Mercury Cash & Carry

Representatives

Malgorzata Kisielewska

Valerie Morrison Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046127-002

12/09/2021

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

CA-00046127-003

12/09/2021

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

CA-00046127-004

12/09/2021

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

CA-00046127-005

12/09/2021

The Complainant  was employed as a sales assistant with the Respondent wholesale and retail company  from the 8 June 2020 until her resignation date  of 18 August 2021, after a period of sick leave which commenced on 12 July 2021. The Complainant  never returned to work following her absence on sick leave. The Complainant  has made various complaints under the Organisation of Working Time Act and the Unfair Dismissal Acts for constructive dismissal. The Respondent denies each of the claimant’s claims under the Organisation of Working Time Act and further denies that the claimant was constructively dismissed.

The following is a summary of the  evidence under oath by  the  Complainant, made  with the assistance of an interpreter:

The Complainant had to carry out very difficult work including heavy food objects which she found to be onerous because of her small frame. She also said she did not receive proper training in a meat cutting machine. She regularly experienced verbal abuse when she was seen not to be quick enough when carrying out tasks, which she claimed amounted to psychological bullying. She felt  particularly intimidated by an employee Mr A who, amongst other things, once  burst into the break room and screamed at her that her break was up. She said she brought this abuse  to the attention of Mr B, the  senior manager,  but he sided with  Mr A.

She found it difficult to go on breaks because she was expected to tend to the needs of customers when they came into the shop. She said the staff canteen was too small and found she often had to eat outside between pallets  in hot weather.  She also said that she had a role of cleaner to combine with her shop duties and this extended to cleaning the staff toilets. 

She found it to be a particular hardship when working in the cold store as no proper warm, protective clothing was provided.

 She went on sick leave on 12 July 2021  with stress as she said her doctor advised  her to stay away from work. When she  was trying to send this certificate or call her manager, she  failed because  she  was blocked on her email and phone, so her partner went with the certificate to her  workplace. She failed a few times in her efforts to contact the Respondent, so she eventually handed  an official grievance to Mr B, whom she claimed acknowledged the contents with a sarcastic manner.  She  refused the choice of going informal with her complaints and instead chose the formal route.

There was a delay in responding to her grievance, contrary to the commitment in the employee handbook that a response would be forthcoming in 10 days.

She states that she was ignored until she sent the Respondent  her  resignation letter.  Her manager sent her an email back saying that  she was  happy to commence  the procedure, but this was only  after receipt of her resignation letter.

The Complainant stated that she was due 80 hours annual leave payment but that she received 57 hours only. When she had asked management about her holiday entitlement, they humiliated her by saying she should work it out for herself “or go back to primary school”.  She also claims that she was not paid for her public holiday entitlement during the material time.

The Complainant  accepted in cross-examination that she had been given an informal warning for her online Facebook post where the company was named when allegations were made with regard to working conditions and the general treatment of staff. She stated that she had posted online looking for information about her rights because she had nobody to turn to, or to support her at the workplace. The witness accepted that she had signed for her breaks but did not know what she was signing for.

On mitigation of loss, the Complainant submitted documents from the Department of Social Protection to show that she was availing of illness benefit since the date of termination of resignation, up to the date of the hearing.

A male witness who described himself as someone who shared the house with the Complainant gave evidence under oath with the assistance of the interpreter. He described how she had to bring the knives that were used in the deli home for him to sharpen. He also said that he observed her preparing labels for foodstuffs in her spare time. He stated that he was a customer of the store and gave evidence of seeing her carrying heavy  bags of potatoes as well as other bulky items. He described her demeanour in the shop  as being stressed  all the time.

In cross-examination, he initially denied that he had posted a message online looking for ex-employees to give evidence at the  hearing but when pressed stated that it might have happened, but he  had no immediate recall.

A shop manager, Inga Kavolynaite, gave evidence under oath. She stated that the Complainant was in charge of taking her own breaks. The witness said the Complainant  signed for the breaks she took on the specified sheet, which was  exhibited.  She gave evidence that she witnessed no bad language being used  in interactions with the Complainant. She stated that the Complainant had partaken in a manual handling course. Certificates from this course were exhibited.  She outlined how pallets were brought in from the store on forklift trucks and that there was a minimal requirement for heavy lifting though she did accept that items would have to be lifted off the pallets.  She received no complaints about faulty equipment. The cleaning duties were carried out at the end of the day and were rotated fairly between a number of employees.

The Respondent’s accountant, Leida Belyakov, gave evidence under oath. She gave a  detailed account , supported by documentation, indicating that the Complainant had received her full entitlement of Annual Leave and Public Holidays.

Summary of the Respondent’s Legal Argument:

Section 1 of the Unfair Dismissals Act 1977, as amended, (the Act)  defines constructive dismissal as, “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.”

 The Respondent refers to the case of Debbie Kearns v Silverfern Properties Ltd. (UD2428/2010) where the EAT held that “In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

 The Respondent cites  Nicola Coffey v. Connect Family Resource Centre ltd. (UD 1126/2014), where it was held by the Employment Appeals Tribunal that “the bar for constructive dismissal is very high.”

The Respondent relies  on the case of Western Excavating (ECC) ltd. v. Sharpe [1978] ICR 221:  where it was stated:

 “If an 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 further performance”.

The Respondent maintains that there has been no breach of the Complainant’s contract of employment. The Respondent sought to resolve and investigate the Complainant’s letter of grievance and her appeal of the warning letter, but the Complainant  declined to engage, despite offers of investigation having been made to her on two separate occasions. The Respondent contends  that the Complainant  unreasonably failed to engage in the grievance process, in accordance with  her contract of employment, prior to her alleged dismissal.  The Respondent submits  that the Complainant resigned prematurely, thus, undermining the entire grievance procedure. The Respondent  cites the case of Conway v Ulster Bank Ltd. (UD 474/1981) where the Tribunal found that the claimant  had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.” The Respondent points out that the Complainant  resigned while she was still absent from work on certified sick leave. The Respondent argues that the Complainant  failed to fully engage with, or to exhaust, the company’s internal grievance process and  submits  that this is fatal to her claim that she had been constructively dismissed.

On mitigation of loss, the Respondent submits that the Complainant  has failed to produce any or sufficient evidence of her efforts to find alternative employment, which she is obliged to do, to mitigate her loss. It is the Respondent’s understanding from the Complainant’s claim that she has been ‘out of work’ since her resignation. The Respondent submits that If the Complainant  is available to work, it is implausible that she has failed to secure permanent employment in a buoyant employment market.

On the Organisation of Working Time Act complaints, the Respondent submits that clear documentary and verbal evidence was given that there were no breaches regarding breaks, public holidays nor annual leave entitlements, by the Respondent.

CA-00046127-002: Organisation of Working Time Act 1997 – Breaks.

The Complainant submitted that there were occasions when she was not afforded her full break whilst at work but submitted no record of when this occurred. The Respondent’s accountant  described how the work  breaks system worked in a roster and produced records to show that the Complainant had signed for all her statutory  breaks. I am satisfied that the Complainant did not discharge the initial burden of proving a breach of her rights regarding worktime breaks  therefore I find that the complaint was not well founded.

CA-00046127-003: Organisation of Working Time Act 1997 – Annual Leave.

The Complainant submitted that she did not receive her full annual leave entitlement. The Respondent’s accountant exhibited full records for the annual leave entitlement of the Complainant showing that she had taken her full  leave entitlement . I found the Respondent’s evidence more convincing on this complaint  therefore, I find that the complaint was not well founded.

CA-00046127-004: Organisation of Working Time Act 1997 – Public Holidays.

The Complainant submitted that she did not get her full public holiday entitlement.  The Respondent’s accountant exhibited full records for the public  entitlement of the Complainant showing that no payment was outstanding . I found the Respondent’s evidence more convincing therefore, I find that the complaint was not well founded.

CA-00046127-005: Constructive Dismissal.

Section 1 of the Unfair Dismissals Act 1977, as amended, (the Act)  defines constructive dismissal as, “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.”

There are two tests for determining if a constructive dismissal has occurred. The first test is the ‘Contract Test’. The Respondent opened the   Western Excavating (ECC) ltd. v. Sharpe [1978] ICR 221:  where it was stated:

 “If an 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 further performance”.

In considering this test I have to  consider if a term of the  Complainant’s  contract was breached by the actions of the Respondent  such as to make it reasonable for  the Complainant  to determine that the contract had been terminated.

Implied in every contract of employment is the fundamental obligation to provide a safe place of work that would not be injurious to an employee’s health.  The Complainant gave wholly credible evidence that she was subjected to ongoing abuse by supervisory members of  staff that was sufficiently intolerable to the point that it  fundamentally breached her contract of employment. When she brought this behaviour to the attention of the senior manager, Mr B, it was evident  that he did not consider it  a matter for immediate investigation.  Instead, The Complainant  gave evidence that her complaints were dismissed without further action being taken. Mr B  did not appear at the hearing to give evidence. Given his failure to do so, I consider the evidence of the Complainant  to be compelling. I found the evidence of Ms. Kavolynaite that she never heard bad language being use towards the Complainant to be insufficient, and somewhat vague, in the context of the detailed behaviour that was being alleged.  

The Complainant also gave cogent evidence of having to work in a cold environment without the necessary warm protective clothing, in what was essentially an open warehouse environment. The position of the Respondent, that they could not source such clothing during the Covid 19 pandemic, was not plausible. The Complainant also gave cogent   evidence of the heavy lifting of materials, which was an obvious difficulty  to someone self-described as of  “small” stature. Such difficulty experienced by the Complainant  should have been self-evident to management and  addressed as a core health and safety issue.  

 Although I am  satisfied that the Complainant had met the “contract test”, I believe it is also necessary to address the second test of constructive dismissal in this case.This is a testin which there is a burden of proof on a Complainant to establish that the behaviour of an employer was so unreasonable that it was reasonable for the employee to terminate their contract of employment. There is also a reciprocal duty on a  complainant to show that they acted reasonably. The Respondent cited    Conway v Ulster Bank Ltd. (UD 474/1981) where the Tribunal found that the claimant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”  The Respondent asserted that it acted reasonably in affording the opportunity for the Complainant to utilise the grievance procedure but that she resigned before the complaints could be properly investigated.

There is an overall context in this case which I  consider to be a significant factor in evaluating the “Reasonableness Test”. The Complainant is of Polish heritage and has very limited English language skills. The Contract of Employment and the Employee handbook were never translated into Polish and when challenged on this at the hearing, the Respondent’s position was that the Complainant had never asked for this. I find this position to be unsatisfactory. Any reasonable employer ensures that all employees fully understand the  terms and conditions of employment, particularly the grievance procedure  which transpired to be of essential importance  in this case.

When the Complainant  brought the  abusive behaviour she claimed to have been  subjected to, to the attention of  Mr B the senior manager and director,  she was essentially making a bullying complaint. However, the evidence shows  it was nonchalantly dismissed. Furthermore, she gave evidence of being so desperate for support and advice that she went on Facebook. Rather ill-advisedly, she identified the Respondent company  and arguably was correctly sanctioned with an informal warning. However, this action was clearly  that of an isolated and vulnerable employee who was not receiving the support and assistance that should have been forthcoming from a reasonable employer.

The Complainant eventually understood how the grievance procedure operated and hand delivered a grievance to Mr B on 12 July 2021. She described how Mr B greeted her in what she perceived was a sarcastic manner. She then  chose to go the formal route and did so on 18 July 2021.  There is a  time limit of ten days for the investigation of a grievance at first instance. There was no response from the Respondent despite the fact that the Complainant had sent further emails. The  Complainant submitted a letter of resignation on 18 August 2021. The Respondent replied the following day with an offer of investigation of the grievance. The Respondent gave evidence that the delay in response could be attributed to the fact that a number of people were on annual leave. This was not a convincing excuse as it was clear that Mr B would have been aware of the contents of her letter on 12 July 2011. Given the seriousness of her complaints, it would have been incumbent on any reasonable employer to at least reply and set an investigatory process in motion. The absence of a properly conducted response to the initial complaint of bullying in the first place was compounded by the lack of any response to the letter of 12  July 2021.

In conclusion the grievance procedures were not translated for the Complainant  when they should have been, no notice was taken of a de facto bullying complaint that was made by her, the Respondent did not abide by its own timelines and, conclusively, the plain fact of the matter was that the Respondent only  offered to investigate the Complainant’s grievance after her resignation letter was received. The Respondent cannot rely on the dictum in Conway when the Complainant was effectively  not afforded the opportunity to  use the Respondent’s  procedures, let alone exhaust them.

For the reasons outlined above, I conclude  that the  Complainant has  satisfied both  the “Contract”  and “Reasonableness” tests and therefore the Complainant  could reasonably deduce that  the Respondent had fundamentally breached, not only the contract in not providing her with a safe place to work,  but also  the relationship of trust, confidence, and fairness - all of which must exist in an employment relationship on both sides. I therefore find that she was unfairly dismissed by way of constructive dismissal.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

Documentary evidence was submitted by the Complaint that she remained on illness benefit, up to the date of the hearing. It is well established that a complainant has a duty to mitigate her loss. The Respondent referred  to the decision of Coad v Eurobase (UD1138/2013), where the Tribunal noted:

“In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that 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.”

The Respondent also referred  to the decision of the Labour Court in the case of Irish Sea Contractors Limited v Ronan Farrell UDD205 in which the claimant, who had not demonstrated reasonable efforts to mitigate his loss was awarded just 10 weeks loss of earnings

It is well established that, where a complainant  is certified sick after dismissal, she is not entitled to recover for the period when unavailable for work due to illness on the basis that any loss during that period is attributable to the illness rather than the dismissal. No evidence was submitted by the Complainant of having attempted to mitigate her loss in any satisfactory manner. Furthermore, I do not have jurisdiction to make an award of compensation in circumstances where an employee is unavailable for work due to illness attributable to the conduct or action of the employer. Having regard to all the circumstances in this complaint, I am satisfied that  it is just and equitable to conclude that there was a loss and that  the compensatory sum should be the equivalent of 8 weeks’ pay, which would be €3840.00    

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00046127-002: Organisation of Working Time Act 1997 – Breaks: For the reasons outlined above, I decide that the complaint was not well founded.

CA-00046127-003: Organisation of Working Time Act 1997 – Annual Leave: For the reasons outlined above, I decide that the complaint was not well founded.

CA-00046127-004: Organisation of Working Time Act 1997 – Public Holidays: For the reasons outlined above, I decide that the complaint was not well founded.

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.

CA-00046127-005: Constructive Dismissal – For the reasons outlined above, I decide  that the Complainant was unfairly dismissed, and I award her the compensatory sum of €3840.

Organisation of Working Time Act 1997, Annual Leave, Breaks, Public Holiday, Unfair Dismissals Act 1997, Constructive Dismissal.