Worker

Employer

Anonymised Parties

Sales Assistant

A Supermarket

Representatives

  Self

Mark Comerford IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

 CA 47087 - 003

09/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

 CA 47087 - 004

09/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

 CA 47087 - 005

09/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

 CA 47087 - 006

09/11/2021

The worker was employed as a sales assistant.  She worked from 09/11/2021 until she resigned on 29/12/2021.  The worker believes that she had no option but to resign as the manager did not allow her to swop a roster night shift to facilitate her attendance at college.   She believes that she was bullied by the manager.  The employer submits that the worker resigned and did not respond to any attempts to deal with the situation or submit a grievance.

The worker on her complaint form stated that she experienced issues with a manager.  He refused to allow her change shifts and as a result she was sick due to tiredness, stress and headaches.  The worker was trying to balance her work hours with her college commitments.  The worker submits that she was told that she needed to work longer or else she would be let go.  The worker also submit that she was not allowed finish her shift at 5.00am and was expected to do overtime.  The worker had organised a swop of a night shift with a colleague, but the manager refused to sanction this.  Another worker who had a similar situation was facilitated.

The employer states that the worker was employed from 27/10/2020 and was issued with a contract of employment.  This set out the terms and conditions of her employment.  The worker submitted a letter of resignation on 28/12/2020.  The worker highlighted an allegation of bullying and harassment as her reasons for resigning.  The employer’s HR manager conducted an exit interview and during this interview the worker was offered work in another department and was also informed of the Grievance and Dispute policy.  The worker responded that she did not want to move department or to raise a grievance.  The HR manager asked her to consider her options.   The worker later advised the HR manager that she did not want to move department.  The HR manager arranged another meeting with the worker, but the worker did not attend.  The HR manager then wrote to the worker and advised her that the employer wished to meet with her to discuss the contents of her resignation letter and her exit interview.  The worker was advised that her resignation would not be processed for a week to allow her an opportunity to meet.  The worker did not avail of this opportunity and the employer processed her resignation.  The worker contacted the employer some weeks later seeking a meeting but was advised that her resignation has been processed and that she failed to avail of the opportunities to attend and discuss.  The worker submitted her dispute to the Workplace Relations Commission on 09/11/2021.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I have carefully considered the written and oral submissions made by the parties in relation to this dispute.

These disputes were referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and, in essence, concerns a claim of unfair dismissal.

The Worker commenced her employment with the Employer on 27/10/2020. Her employment terminated on 29/12/2020. The Worker referred her dispute to the WRC on 09/11/2021.

The Employer raised the matter of applicable time limits. I note that the Worker referred her dispute to the WRC over 10 months after the termination date. I also note that the Worker outlined her difficulties in obtaining advice along with the consequences of the pandemic restrictions that, she asserted, contributed to the delay. In that regard, I find that, unlike provisions within employment rights legislation, there is no stated statutory time limits that restrict a Worker from taking a claim under the Industrial Relations Act. 

On the basis that the Worker had less than the 12 months service required under section 2(1)(a) of the Unfair Dismissals Act, in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts and is, in essence, a claim of constructive dismissal.  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 must 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 must have been breached to such a degree that the employee is left with no option but to resign.  However, it is now also generally understood that an employee must 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 action or behaviour in resigning was reasonable in all the circumstances. 

It is also well established that an employee is required to initiate and exhaust the employer’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.”

Based on my careful consideration of the written and oral submissions, I find the Worker has failed to discharge the burden of proof to support this claim that she was constructively dismissed for the following reasons.   I do not find the conduct of the Employer amounted to an essential breach of the contract of employment.  Having carefully reviewed all the information I cannot find the Employer acted or behaved in a manner so as to leave the Worker with no option but to resign. Finally, the Worker did not avail herself of the grievance procedure prior to resigning.  I also find that the delay in submitting her dispute to the WRC was unreasonable.

In relation to the workers claim that she was dismissed by the employer the worker did not pursue this dispute.

The worker also did not pursue her dispute that she was the subject of bullying by the employer.

Constructive dismissal.  Grievance procedure.