ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048952

Parties:

Complaints:

Date of Adjudication Hearing:  26/02/2024 & 17/06/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015Section 79 of the Employment Equality Acts, 1998 - 2015,  Section 8 of the Unfair Dismissals Act1977, Section 7 of the Terms of Employment (Information) Act 1994 and Section 27 of the Organisation of Working Time Act 1997,  following the referral of the complaints to me by the Director General, I inquired into the complaints  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as an Administrative Assistant. She submitted complaints of constructive dismissal, discrimination on gender grounds and the Respondent’s failure to provide her with written terms of employment in accordance with the Act.

Summary of Complainant’s Case:

The Complainant was employed as an Administrative Assistant from 16 November 2020 until 30 October 2023.

She did not receive a contract of employment up until October 2023.

The Complainant contends that she was unfairly dismissed by way of constructive dismissal, when the behaviour of the employer was such that it was impossible for her to continue her employment and she resigned.  She further contends that she was discriminated against on grounds of gender in relation to pregnancy when the Respondent reduced her hours of work.

It is contended that the Complainant was subjected to bullying and harassment by the Principal of the Respondent’s Centre.   In particular, the series of negative, targeted behaviours towards the Complainant amounted to an undermining of her esteem.

The Complainant gave evidence on Affirmation.

She advised the employer of her pregnancy in August 2023, and in September her hours were reduced.  Following the Complainant making enquiries with Citizens Advice, the employer changed the hours back in October 2023.  This changing of her hours caused her stress. 

The Complainant outlined complaints, some of a general nature and some of bullying and harassment to which she contends that her employer subjected her.

In May 2022, the employer singled her out for excessive phone use.  She alleges there was excessive monitoring and control of her by the employer.

In July 2022, the employer brought the complainant outside the building to admonish her for incorrectly processing insurance for a student.  She stated the allegation was wrong and the fact that she was publicly berated outside in a public street was harassment.

In January 2023 the complainant was scolded ‘like a teenager’ for staying in work until 7.30pm.  Another colleague was not.

In February or March 2023 the complainant was shouted at and blamed wrongly for some plates that fell out of a cupboard.

The complainant did not receive a contract of employment.  She contended that another employee who came in for the Summer period received one immediately.  The complainant did not receive one until after she went on sick leave due to stress (18 October 2023).

In September 2023 the complainant was scolded for sending out the wrong information to parents.       The employer was rude to her on the phone and displayed aggression.   The complainant was pregnant and felt very upset by this.

In July 2023, the employer used the complainant’s email to send out information and contracts to parents and agents.

The complainant went on sick leave in October 2023 and had to leave her employment due to the unreasonable behaviour of the employer.

The complainant stated that she had no knowledge of any grievance procedures and had not received a contract of employment or employee handbook.

Two witnesses gave sworn evidence.

Witness A worked in the centre for around a year 2022 to 2023.  She observed the Complainant was initially happy in her work.  Then her mood changed, she became very negative and depressed.  The witness said that the Complainant was treated badly by the Principal.  She was shouted at and one particular incident involving broken plates was recounted where the Principal shouted for the Complainant to come downstairs as some dishes were broken.  The Complainant was over monitored in her work and got long to do lists and was spoken down to by the Principal.

On cross examination by the Respondent’s solicitor, the witness confirmed that she had written a resignation letter effusively praising the Respondent.  She said she had no knowledge of notices on the notice boards or an Employee Handbook.

Witness B stated that she was a student.  At the request of the Complainant, she took photos of notices on the notice board in February 2024.

Summary of Respondent’s Case:

The Respondent’s solicitor stated that there has been a significant downturn in the business. This reduction occurred in the business with the loss of a French agent.  The business involves school children coming from abroad to learn English in their summer holidays and also adult student classes.  The numbers reduced considerably in 2023.  The reduction in hours for the Complainant was only a short-term measure.  When the Complainant strenuously objected, she was put back on full hours.  This short-term measure was not connected to the Complainant’s pregnancy.

The Principal of the Company gave evidence on affirmation. 

She stated that they were a small family business. There were no students left at that time and the business had to cease operations.  Due to the cancellation by a French agent, they lost 23 day students and 6/7 boarders, a reduction of 77%.

The Complainant informed her of her pregnancy in August 2023 when she came back from holidays.   There were emails back and forth between her and the Complainant about the new hours and once the Complainant lodged her objection, the full hours were quickly restored.  The first she knew about alleged constructive dismissal was when the WRC form came in. She refutes the claims of bullying and harassment.  She worked side by side with the Complainant and did not over monitor her.  She allowed her autonomy.  However, the Complainant was often silent and she did have to ask her if certain tasks were done.  The Principal was not on notice of any medical condition, and was not given medical certificates stating the complainant was suffering from stress.

A number of other witnesses gave sworn evidence, stating that it was obvious the business was significantly reducing in 2023 and that they did not witness bullying and harassment of the Complainant by the Principal.

Findings and Conclusions:

CA-00060164-001            Employment Equality Act 1998

It is contended that the Complainant’s hours were reduced due to her pregnancy. 

Section 6 (2A) of the Employment Equality Act 1997 (as amended) provides:

(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

I have reviewed the evidence and submissions in relation to this matter.  In order to succeed in her claim, the Complainant must first establish a prima facie case establishing facts from which it may be inferred that discrimination took place on the ground as outlined.

Section 85A of the Employment Equality Acts 1998 provides:

“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.             It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In this instant case, it is common case that the Complainant was pregnant and informed the Respondent of the fact in August 2023.   I find that the fact that the Complainant notified the Respondent that she was pregnant constitutes a prima facie case.  This means the burden of proof shifts to the Respondent to prove that the alleged discriminatory act was not related in any way to the pregnancy.   The Principal of the School gave evidence which outlined the reduction of hours for 3 staff including the Complainant.  I note that the Principal agreed to return the Complainant to full hours in the immediate aftermath of the Complainant’s objection.  I find that as the Complainant was not the only staff member who had her hours reduced, the Respondent has not infringed the principle of equal treatment.  I find that the Respondent has not discriminated against the Complainant on the ground of gender.

CA-00060164-002            Unfair Dismissals Act 1977

The Complainant contends that she was constructively dismissed.

The definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“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 a claim of constructive dismissal, the onus of proof rests with the Complainant.

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract.

Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment but its conduct may be nonetheless unreasonable.

In a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Where grievance procedures exist, they should be followed.  In Conway v Ulster Bank Ltd the Employment Appeals Tribunal considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.   At the very least an employee should communicate his or her grievance before resigning.

In this instant case, I note the conflicting evidence of the parties in relation to whether the Complainant was aware of an Employee Handbook which the Respondent contends is on prominent display in the workplace.  I note the business is a family business and the fact that it was the Principal who was the Complainant’s Manager was the alleged perpetrator of the bullying and harassment to which the Complainant alleges she was subjected.   I find therefore that the failure of the Complainant to utilise the grievance procedure is not a fatal flaw in this case.

I note the long list of complaints the Complainant outlined against her employer.  I note some were corroborated by the evidence of Witness A.  I find that the evidence that the Principal shouted at the Complainant indicates a lack of respect and professionalism on her part.  The issue of the reduction in the Complainant’s hours obviously caused her stress.  I find that on balance, the behaviour of the Respondent was such that the Complainant resigned due to the stress she experienced. I find that she was unfairly dismissed by way of constructive dismissal.  I find compensation to be the appropriate remedy.  I have not been given evidence of attempts at mitigation of loss.  I therefore  award her the sum of €5,850 compensation which I consider to be just and equitable in the circumstances.

CA-00060164-003            Terms of Employment (Information) Act 1994

It is common case that the Respondent did not comply with Section 3(1) of the Terms of Employment (Information) Act, 1994 as amended which requires that an employer shall, not later than one month after the commencement of an employee’s employment give or cause to be given to the employer a statement in writing containing detailed particulars which are described in that section of the Act.

I find the complaint to be well founded.  I require the Respondent to pay to the Complainant the sum of €975 in compensation.

CA-00060164-004            Terms of Employment (Information) Act1994

This complaintwas withdrawn at hearing.

CA-00060164-005            Organisation of Working Time Act 1997

This complaint was withdrawn at hearing.

Decision:

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.

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.

I have decided that the complaint is well founded and I award the Complainant the sum of €5,850 compensation.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have decided that the complaint is not well founded and the Respondent did not discriminate against the Complainant.

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions in that Act.

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €975 compensation.

Dated:   29-08-2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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