Complainant

Respondent

Parties

Aoife  Dowdall

Applegreen

Representatives

 In person

David O'Riordan, Sherwin O'Riordan Solicitors LLP

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-00061438-001

07/02/2024

The Complainant was employed by the Respondent from 13th February 2018 until 13th February 2024.

This complaint was received by the Workplace Relations Commission on 7th February 2024.

The complainant has been working for Applegreen Lusk South in the Bakewell department for the last 7 years, she had commenced on a work experience programme and worked her way up to the position of supervisor.

On the 3rd of January 2024 the Complainant sent an email to the site manager, regional manager, operations director and CEO of the company, explaining she didn’t want to but felt she had no choice but to step down from the management team. This is the point the complainant feels everything started going wrong.

On the 4th of January 2024 near the end of her shift her manager took the Complainant to a public Burger King booth, there is an office and canteen on site for a private and confidential meeting. The site director was also present.

The purpose of this meeting was to discuss the email that was sent the night before. In the meeting the Complainant was told nobody in management had any desire to negotiate with her or even meet with her to talk. The Complainant was told she had done this to herself by sending this email, there was no going back, and she had to stick to what she had decided, she was also told the roster for the following week would be changed and it would be sent to her.

The Complainant’s manager stated the roster was already done for the following week, the site director replied “it will be changed” the manager then replied “who will be doing the roster “the site director replied “not you”, the site director told the Complainant that  there will be a new management team put in place from Monday.

When the Complainant’s manager went to get the roster on the Friday afternoon there was a new roster done by the site director. Two staff members was brought from the site across the road in Lusk North Applegreen.  The manager from Lusk North would now be managing both Bakewells, Lusk North and Lusk South.

On 5th of January 2024 the Complainant called in sick due to stress and the humiliation she felt after the meeting and the way she was spoken to by the site director.

On Friday afternoon 5th of January 2024, the Complainant found out she was being taken out of her department and put into Burger King for 3 days and had college through the company for the other 2 days, there had been no discussion between the Complainant and management in relation to any proposed changes and no amendments made to her contract of employment.

After hearing about this transfer the Complainant states that she was absolutely devastated as she have given  the company 7 years, started as work experience and worked her way up in the company, this was her first job and she was also doing a 2 year apprenticeship in retail management with the company that she felt she had to leave as she felt she wouldn’t be able to continue the course as she was no longer part of the management team in Applegreen.

On the 8th of January 2024 the Complainant got a sick note for 5 days as she felt she  couldn’t face going back into the building as she felt she was being pushed out of the door and being made an example of as two other employees stepped down from the management team and were left in their departments and left with their hours and another two different employees handed in their notice and got offered higher positions with more money.

On 7th February 2024 the Complainant had a meeting with the new site director and explained how she felt she was being pushed out of the company and was being made an example of, he explained if she came back to work, they could discuss different hours and days but still not in her original department which was the Bakewell as there was no hours as staff for me. The Complainant points out that two members of staff had recently left this department.

The new site director told the manager of the Bakewell that he was told by the old site director that going forward she (the complainant) was to be put in Burger King and she (the Bakewell manager) was to be put in Lavazza.

Since that meeting three new staff members have been employed.

The Complainant was updated by a member of staff and was told they (management) were bringing staff from other Applegreens to fill in shifts as they were short staffed. Management contacted an old member of staff that had left in the past and asked him to come back and the new site director was apparently coming in at 4:30 am to fill an opening shift in the Bakewell.

·         The Complainant commenced her employment with the Respondent on 13th February 2018 as a Sales Assistant, and she engaged in the Respondent's Apprenticeship Programme. A copy of the Complainant's Contract of Employment was made available to the hearing. The Complainant was promoted throughout the course of her employment and held the position of Bakewell Supervisor in the store located at M1 Lusk Southbound, Co. Dublin. 

·         On 22nd December 2023, Neil Somers, Former Site Manager of the M1 Lusk Southbound service station, consulted with the Complainant. An increased rate of pay of €2,000.00 was offered to the Complainant in her role as Bakewell Supervisor. This was offered in advance of the statutory minimum wage increase coming into effect. 

·         On 22nd December 2023, Sarah Hayden, HR Business Partner of the Respondent, received an email from the preceding Bakewell Manager, Joan Dowdall, signed on the Complainant's behalf, outlining the Complainant's dissatisfaction at the increase in pay which she had been previously offered.

·         On 3rd January 2024, the Respondent's HR Department received another email from Joan Dowdall, signed on the Complainant's behalf, confirming that the Complainant wished to step down from her position as Bakewell Supervisor and return to a Team Member role within the business.

·         A meeting was arranged for the Complainant to attend with Neil Somers, which took place on 4th January 2024. Mr. Somers confirmed to the Complainant that the Respondent was not in a position to increase the pay rise which was previously offered to her. The Complainant proposed that a member of staff was leaving, and that their bonus could be shared with her. The Respondent confirmed that this is not how the business operates. The Complainant was informed that the Respondent accepted her decision to step down from her role as Bakewell Supervisor, however the Respondent offered her an alternative position in the Burger King department of the M1 Lusk Southbound service station. 

·         Nonetheless, as per the Complainant's Contract of Employment, the Respondent reserves the right to transfer the Complainant to a different department dependent upon business or organisational needs. 

·         On 8th January 2024, the Respondent's HR Department received a medical certificate to cover her period of absence from 08.01.2024 - 12.01.2024 inclusive. The medical certificate presented was scarce in detail and did not confirm the Complainant's medical condition.

·         On 19th January 2024, Daniel Ferris, Site Director, sent an email to the Complainant seeking an update in relation to her health, and whether she would be returning to work the following week. Mr. Ferris requested a medical note from the Complainant to cover the preceding week. The Complainant responded by return confirming her upcoming doctor's appointment and that she would provide a further update then.

·         On 31st January 2024, the Respondent received a copy of the Complainant's medical certificate to cover her period of absence from 15.01.2024-04.02.2024.

·         On 20th January 2024, Joan Dowdall sent an email to the Respondent on behalf of the Complainant expressing the Complainant's discontentment with how the meeting on 4th January was convened, and the fact that she was transferred to a different department. The Respondent responded to Joan Dowdall's email on 23rd January to confirm that they were unwilling to discuss the Complainant or any other colleague. 

·         On 4th February 2024, the Complainant's medical certificate expired and the Respondent has not been provided with any updated medical note since then. The Complainant was informed that her absence at the time was noted as an unauthorised absence from employment. 

·         On 6th February 2024, the Complainant was invited to an informal welfare meeting with Daniel Ferris to discuss her sick leave and when the Respondent should expect the Complainant's return to work. The Complainant requested to reschedule the meeting to 7th February 2024, and the Respondent made arrangements to facilitate said meeting.

·         At the meeting on 7th February 2024, the Complainant and Daniel Ferris were present. She was offered the opportunity to have a witness present, however the Complainant confirmed that she was happy to proceed with the meeting in the absence of a witness. She was informed by Daniel Ferris that the objective of the meeting was to discuss her work status and facilitate her return to work. 

·         During the welfare meeting, the Complainant expressed her concerns with having been transferred to a different department and continually referred to an unfair dismissal case against the Respondent. Daniel Ferris explained that he was unaware of any unfair dismissal case. Mr. Ferris expressed that the Respondent was willing to accommodate the Complainant with suitable working hours/shifts in the Burger King Department, however she stated that she would be embarrassed to work in Burger King while pursuing a case against Applegreen.

·         It was explained to the Complainant that she had not raised a grievance and must consult the Respondent's Absence Policy in circumstances where she has not submitted updated medical certification. She was informed that unauthorised absence from her employment may lead to disciplinary action.

·         On 12th February 2024, Daniel Ferris issued a letter to the Complainant detailing the outcome of their welfare meeting. The content of the Respondent's letter confirms that the Respondent is "happy to discuss more suitable hours on your return to work." The Respondent reminded the Complainant of their grievance policy to address any issues she may have, enclosing a copy of same. The Respondent expressed their desire "to get you back to work and trained in your new department..." enclosing a copy of her new work roster.

·         On 13th February 2024, the Complainant emailed Daniel Ferris tendering her resignation, stating "I feel I cannot return to Applegreen due to the way I was treated after stepping down from management. I feel this is an act of constructive dismissal. There has been an application made to the WRC."

·         The Complainant refers to the way in which she was treated during her employment, insinuating some ill-treatment on the part of the Respondent. The Complainant has failed to evidence any instance of mistreatment by her employer. She has refused to avail of her employer's grievance procedure in an attempt to resolve matters and now claims for constructive dismissal. The Respondent wholly disputes the Complainant's case.

Legal Submission.

The Complainant resigned her employment and now claims that this resignation constitutes a constructive dismissal. 

Section 1 of the Unfair Dismissals Act, 1977 defines constructive dismissal as follows: 

“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 test for establishing whether a resignation constitutes a constructive dismissal is set out 

in the decision of the Employment Appeals Tribunal in Byrne v. Howarth Bastow Charleston 

Wealth Management Ltd. UD67/2014: 

“In constructive dismissal cases, the onus is placed on the Claimant to show that her conditions and treatment in the workplace by the Respondent were so intolerable and intractable that she had no other reasonable option but to involuntarily resign... 

Before embarking on this course of action it is important that the Claimant exhaust all other avenues, in particular any existing “harassment" or "grievance" procedures. This was not done. The burden of proof in such cases is an onerous one, in that the Claimant must prove not only that the Respondent's behaviour was unreasonable, but also that the Claimant's response in resigning was reasonable. 

The Respondent submits that the onus of proof as outlined above, has not been discharged by the Complainant in this case. Her resignation was neither resulting from the conduct of the Respondent or any fundamental breach of her contract. The Complainant also failed to invoke any internal procedures before deciding to resign from her employment. 

In order for the Respondent to address any of the Complainant's concerns, it was incumbent on her to initiate and exhaust all internal remedies with her employer before resigning her employment, as per the legal obligation as set out in the decision of the EAT in Conway v. Ulster Bank UDA474/1981. 

Such obligation has been confirmed and applied by the EAT in Harrold v. St Michael's House UD/1123/2004, where it was stated that "just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too should an employee invoke the company's grievance procedures in an effort to resolve his grievance.” 

The Complainant was reminded by the Respondent during their meeting on 7th February 2024 that any issues can be dealt with through the Company's grievance procedure. The Complainant had been furnished with the relevant policies but failed or neglected to initiate the grievance process. 

In the case of Barry-Relph v HSE UD980/2014, the EAT emphasised the fact that an employee must accord her employer a reasonable opportunity to address her concerns before she resigns in order to successfully claim for constructive dismissal. The claimant in that case raised issues with management but had not specified how they could be resolved to her satisfaction. As a result, the EAT ruled that this was unreasonable did not constitute a dismissal. The facts of the Complainant's case are similar whereby she made no efforts to engage with the Respondent to resolve matters.

Instead, the Respondent received correspondence through another colleague, Joan Dowdall, on numerous occasions, expressing the concerns of the Complainant. This course of action was inappropriate and did not seek to resolve matters. The Respondent was not obliged to discuss this matter with a third party, nor disclose information concerning other colleagues. 

It is the Respondent's case that this is yet another factor which confirms that the Complainant has no reasonable basis for a claim of constructive dismissal, whatsoever. 

WRC in McGrath v. JD Wetherspoons ADJ-00031597 where the Adjudication Officer made the following observation: 

"I am troubled by the Complainants sudden resignation; I have not found a 'last straw moment. 'I have not found an argument or a reported or diagnosed exacerbation of a medical condition...” 

The Respondent submits that a similar approach is warranted in this case. It is the Respondent's respectful submission that the Complainant's resignation cannot reasonably be deemed to have been a dismissal. Since the Complainant's medical certification had expired from 04.02.2024, the Respondent arranged a meeting with the Complainant shortly thereafter to discuss her health, current work status and to facilitate her return to work. The Respondent's actions towards the Complainant throughout her tenure have always been reasonable and appropriate in the circumstances. 

In Schonfield v West Wood Club Clontarf Limited UD 1013/2013,the EAT held that the actions and behaviour of the Respondent contributed to the decision of the claimant to resign, as their style of communication towards her was aggressive and hostile. This can be distinguished from the Complainant's case as nothing in the Respondent's interaction with the Complainant can be characterised as treatment that was, in any way, intolerable and intractable that the Complainant had no other option but to resign. 

It is submitted that the Complainant's resignation was voluntary and does not constitute a constructive dismissal whatsoever. 

Conclusion.

The Complainant resigned her employment voluntarily without having exhausted the Respondent’s grievance procedure, and there has been no breach of contract in this case.

The Complainant has failed to discharge the onus of proof to demonstrate that she was justified in her decision to resign her employment based on the Respondent’s conduct. The Respondent’s treatment of the Complainant was fair and reasonable at all times and does not warrant the existence of a constructive dismissal claim. The Respondent attempted to facilitate the Complainant’s return to work, notwithstanding her unauthorised absence from the workplace from 4th February 2024. The Respondent undertook in writing that it would address any outstanding concerns that the Complainant had once she had returned to work. The Complainant’s conduct and decision to resign was totally unreasonable in the circumstances. The claim for constructive dismissal is, in the Respondent’s respectful submission, not well founded.

In cases alleging statutory constructive dismissal the employee goes into evidence as he or she bears the burden of proof as to dismissal. He or she must persuade the Workplace Relations Commission that resignation was not voluntary.

Constructive dismissal is defined in s.1 of the 1977 Act 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.”

In the instant case this has been clearly pointed out by the Respondent.

In ‘Redmond on Dismissal Law’ (Third Edition, Bloomsbury Publishing, Desmond Ryan) page 439, chapter 19.14 which reads as follows:

There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed.

Conway v Ulster Bank Ltd UD 474/1981.

In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’ Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.

In the instant case the complainant failed to utilise the employer’s grievance procedure.

One other aspect of this complaint is troublesome. The Complainant resigned from her employment by email dated 13th February 2024. The Complainant’s complaint form to the WRC was received on 7th February 2024. In this complaint form the Complainant states, “I had to leave my job due to the conduct of my employer or others at work (Constructive Dismissal), I have at least 12 months service” The Complainant was still employed at this time.

I have carefully considered the submissions and evidence provided orally at hearing.

The complaint as presented under s.8 of the Unfair Dismissals Act 1977 is not well founded for the reasons set out above.

The complaint as presented under s.8 of the Unfair Dismissals Act 1977 is not well founded for the reasons set out above.

Constructive Dismissal.