Complainant

Respondent

Parties

Beverley  Mellor

The Organic Centre Company Limited Bg The Organic Centre

Representatives

  Self

Ellen Walsh Peninsula

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-00057299-001

22/06/2023

This case is a complaint of constructive dismissal where the Complainant resigned her employment following a meeting with the manager at which a cut in working hours was discussed.

The Complainant commenced employment with the Respondent in April 2017 and was employed until her resignation on 22 February 2023. She was employed as a shop assistant working 19.5 hours per week, mainly at weekends, earning €962.81 gross per month on annual contracts. In December 2022 her previous contract expired, and she did not receive a new written contract but continued working.

The Complainant spoke about loving her job. She worked mainly at weekends where she met a lot of course participants.  On 22 February the Complainant and her daughter who also worked in the employment met with the manager JM at her request. First there was a discussion about a potato order which she found strange. This was followed by another discussion-about another worker-A- who is also the managers son-and the attitude of the two employees towards him. What she described was some disagreement on this issue. When the Complainant tried to say that he had a few things to learn, she felt the manager did not like this. Then the manager spoke about the Centre struggling for money. They were asked how they would feel about a cut in their hours. When they asked what percentage of a cut, she said they would do 1.5 days each. Her daughter said she would look for another job-that the Complainant loved her job. Then they spoke about how they would cover three days between them I day each over the weekend and a half day Monday. the manager said she knew they would sort something out between them. They asked if other workers hours were to be cut and the manager referred to possibly another named worker - B -that she would be speaking to her. F would not have his hours cut though he was doing the same job. The Complainant went on to say that she had seen this happen before-other peoples hours being cut and then they had to leave. She had a sense of déjà vu at that meeting. Later the Complainant asked the other worker B- if the manager had spoken to her about a cut in hours and she replied no. She and her daughter felt they had been lied to at the meeting. Her daughter asked her if she wanted to stay there(in the employment). The Complainant said she felt fairly conflicted, she did not want to accept that she might have to leave. But if she stayed there, she would be doing the bidding of someone she thought of as not a good person. She resigned on Monday 27 February in an email to the manager which she copied to others, thinking someone of them might contact her but nobody did. The manager accepted her resignation in an email on the same day. The Complainant referenced another person-a former member of the Board -C- who she believed had contacted the Chair of the Board about her situation where he said that the manager wanted to push the Complainant out of the employment which he confirmed in an email on 5 May 2023. Also on 5 May 2023, the Complainant sent an email to the Board of Directors about people being pushed out of the Centre and the meeting at which the manager wanted to cut her hours(and her daughter’s hours).

The Complainant felt that she was pushed out of her job by the manager.

The Respondent rejected the claim of constructive dismissal. In or around February 2023 it became clear to management that the centres financial situation was poor. It was decided to explore options to keep as many people as possible in employment. Hours of work of employees not covered by the grant allocation were identified as a possibility to reduce-this included the Complainants hours. The Chairman of the Board discussed the situation with the manager. A contemporaneous note of a meeting on 22nd February shows the Complainant being told that her hours may be reduced. A reduction of 2.5 days to 1.5 days was discussed. There was a discussion about employee A and the need to be mindful that he was new to his position. When the question of reducing hours was raised, the Complainant did say she would be willing to consider, and the manager stated that any cuts could only be to non -funded posts(the Complainants daughter was in a funded post at the time). Nothing was agreed at the meeting and the Complainant was made aware that this was only at enquiry at that stage.

The Respondent is of the view that the Complainants decision to leave was sparked by her daughter’s general discontent in the employment. The Respondent referred to other issues in the background involving another individual being a driver in this situation. When asked why the manager was not present at the hearing, the representative replied that she made that decision because of some concerns she had from a health and safety perspective(not made in any reference to the Complainant).

The Respondent made a legal submission based on precedents in case law related to constructive dismissal. In no case had she found a precedent where a complaint was upheld where the ground was what a person/employer might do rather than what they had done. The Complainant was aware of the grievance procedure and failed to utilise that procedure at all.

Witness Evidence- Chair of the Board Gearoid Mac Eochaidh

The witness is the Chairperson of the Board of the Centre for 11/12 years. He spoke about the debt problems of the Centre over recent years. Moving banks in 2023 had caused some additional difficulties as they had no overdraft facility. On 31 January he met with the manager. Savings required of 3-5k were identified for discussion with staff. The possibility of a cutting staff hours was discussed. Cuts would come from the trading side of the business as cuts in funded posts would not be permitted by the funders. Prior to her resignation he was not  aware of any issues she might have had. He was aware of some difficulties in the shop team. He did not get involved personally with staff matters, this was an issue for the manager. He spoke about a decision of the Board to engage an external person to conduct a review of staff relationships-this was referenced in an email sent to the Complainant on xx June. He explained that engaging someone had taken longer than expected but was due to commence. The resignation of the Complainant and her daughter left hours to be covered over five days which was done mainly by student cover.

Logically and or legally this is not a valid complaint of constructive dismissal.  For the benefit of the Complainant, I include the relevant section of the Unfair Dismissals Act 1977.

(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,

There must be some serious questions about the manner in which the meeting of February 22nd was convened and conducted by the manager. If, as is set out in the Respondents submission at par 21, the only hours to be cut were those of the Complainant, why was this discussion taking place in the presence of another employee, albeit her daughter, as part of a wider employee relations agenda? Why was she not on proper notice of the purpose of the meeting instead of being landed into a discussion about reducing her hours to such an extent that, had the cut been implemented, the Complainant might well have been entitled to pursue a claim for redundancy and/or social welfare benefits depending on how the cut was structured and the duration. In any event the managers own notes of the meeting are consistent with the Complainants account-that a cut in both employee’s hours was sought by the manager at the meeting. It would appear that the only real issue of concern to the Board and the manager was the cuts to be achieved at the expense of the Complainant and not the impact on her circumstances. The entire tone of the meeting in February was aimed at the Complainant and the other employee. The fact that the manager accepted the resignation of the Complainant less than ten minutes after receiving it, suggests that the Complainant and her daughter were perceived by the manager as being somewhat problematic and their resignation was regarded as a solution to both the interpersonal and financial issues faced by the manager and the Board and was quickly accepted on this basis.

From the forgoing conclusions it follows that the misgivings held by the Complainant which triggered her resignation could not be regarded as altogether far-fetched. However, and this is where both the logic and the law defeat the Complainants claim, the Complainants own  resignation email to the manager containing her resignation was abusive.  The mail contains such phrases as ‘total and utter mistrust in you’ ‘a tactic I have seen you use before’ ‘made me lose all faith in you’ ‘you’ve made a job I love unbearable’ ‘I would rather have no job that continue to work for you’. No manager could be expected to turn the other way from such language. There was a grievance procedure available to the Complainant and she could have utilised that to raise issues of concern following the meeting with the manager in a reasonable fashion. Instead, she appears to have been influenced or at least affected  by other people in their issues with the manager. She came across at the hearing as a person who genuinely loved her work and had concerns about the way in which the Centre is being managed in terms of employee relations. She had a really genuine issue to raise about being singled out for severe cuts in her income which appears to have been the case or alternatively how a cut could be suggested to her daughter when she was in a funded post which the Chairperson in his evidence suggested were almost untouchable. However, her failure  to raise those issues through the grievance procedure or with the manager before resigning means that she cannot claim to have been constructively dismissed when she gave the employer no opportunity to address her concerns. The Boards response to her later email of 5 May 2023 on June 10, 2023, in  which they undertook to pass her correspondence to the independent review simply reinforces the point, that raising her issues through the available procedure instead of resigning might have achieved a better outcome, at least for her.

CA-00057299-001 The Complaint of unfair dismissal brought by Beverley Mellor against The Organic  Centre is not well founded and is dismissed.