Complainant

Respondent

Parties

Joan  Dowdall

Petrogas Group Limited t/a Applegreen

Representatives

 Sherwin O'Riordan Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00061439-001

07/02/2024

The complainant gave evidence on oath.

By way of background she said that she had been offered a pay increase in December 2023 which was not acceptable to her. In early January she had a meeting with two of the company managers at which she said she was ‘stepping down’. This followed a period of sick leave and she said that she could not face going back.

She said that she was punished for stepping down from manager to basic staff. Her hours were cut, department was changed without notice, and salary from final week as manager was reduced to staff pay.  Two Public Holidays owed from 2023 were taken away also.

Other people as part of a management team handed their notice in the same week and were treated differently. Their notices were accepted, then negotiated approximately two weeks later and they were offered a higher position with better pay in their same department. I feel like I was used as an example as no other member of management that stepped down was punished in any manner Meetings with regional and site managers were taken in a public setting rather than the private settings that were available on site.

Many attempts were made to resolve this dispute, but both parties could not find a common convenient date/time.

In cross examination it was put to her that her issue was a grievance over pay, but she denied this saying it was the internal transfer to another unit, Lavazza. She objected to going there as there were interpersonal difficulties with the manager of that unit.

She confirmed that she did not raise a grievance at the level of the workplace as she did not believe in that process or that it would be investigated fairly.

The complainant, who had held the position of Bakewell Manager at Applegreen, Lusk Southbound, Co. Dublin claims that she was constructively dismissed, contrary to the Unfair Dismissals Act, 1977. She voluntarily resigned her employment on  February 14th, 2024.

On December 22nd,  2023 she had a meeting with Neil Sommers, Line Manager at Applegreen, in relation to a proposed increase of €3000 in her annual salary. She rejected this offer and proceeded to contact senior managers of the company to express her dissatisfaction and attempted to negotiate a higher salary. 

OnJanuary 3rd,  2024thecomplainant contacted KeithEnnis,SeniorOperationsManager atApplegreen, Aaron Duggan, Neil Sommers and Joe Barrett via e-mail stating that she wishedtostepdownfromhermanagement positionandreturntothepositionheldby ordinarystaffmembers.

The e-mail stated " ... it is with deep regret and sadness both me and Aoife will be stepping down as part of the management team effective today and going back as staff ...".

On January 8th 2024 Keith Ennis contacted her confirming acceptance of her decision to step down from her management position and amending the roster to reflect this. She was invited to attend a meeting on January 12th 2024 to discuss the matter further.

On January 11th, Keith Ennis contacted her acknowledging her absence from work on certified sick leave and that the proposed meeting scheduled for January 12th, 2024, would be rescheduled on her return. She submitted a medical certificate valid from January 8th to 12th.

On January 23rd, 2023, the HR Business Partner at Applegreen sent an e-mail to the complainant notifying her that the medical certificate had expired and that no contact or medical certificate to cover her uncertified absence has been provided to date.

The respondent extended an invitation to the Complainant to discuss her failure to keep in contact and address any further clarifications that she may require.

On February 12th, 2024, Daniel Ferris sent a notice of uncertified absence to the complainant.

On February 14th, 2024 the Complainant contacted Daniel Ferris, Site Director at Applegreenviae-mailstatingthatshefeelslikeshecannotreturntoworkafterthewayshe hadbeentreated andthatacomplaint hasbeenlodgedwiththeWRC.

The e-mail stated.

 "I feel I cannot return to Applegreen due to the way I was treated after stepping down from my managers role. I feel this is an act of constructive dismissal. There has been an application made to the WRC ".

The Complainant lodged a complaint with the WRC under Section 8 of the Unfair Dismissals Act, 1977 on February 7th, 2024.

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 employee".

The test for establishing whether a resignation constitutes a constructive dismissal is set out in the decision of the Employment Appeals Tribunal ("EAT") in Byrne v. Horvath Bastow Charleston Wealth Management Limited. UD/67/2014:

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 exhausts 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 Respondents behaviour was unreasonable, but also that the Claimants response in resigning was reasonable. "

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

In order for the respondent to address any of her 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, Ulster Bank UD/474/1981.

Such obligation has been confirmed and applied by the EAT in Harold v. St Michaels 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 had been furnished with the relevant policies but failed or neglected to initiate the grievance process.

In the case of Barry-Relph v. HSEUD/980/2014,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 and did not constitute a dismissal. The facts of the Complainants case are similar whereby she made no efforts to engage with the Respondent to resolve matters.

Instead, the Complainant continued her absence from work on uncertified sick leave and remained out of contact with the Respondent during this period.

Workplace Relations Commission ("WRC") in JMcGrath 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 12 January 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 Respondents actions throughout her tenure have always been reasonable and appropriate in the circumstances.

In Schonfield v West Wood Club Clontarf Limited UD/1OJ 3/2013, 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 Complainants 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.

The complainant resigned her employment voluntarily without having exhausted the Respondents grievance procedure, and therehas been no breach ofcontract inthiscase and she hasfailedtodischargetheonusofprooftodemonstratethatshewasjustified inherdecisiontoresignheremploymentbasedontheRespondent'sconduct.

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 12 January 2024. The Respondent undertook in writing that it would like to invite the Complainant to a meeting to discuss any further clarifications that the Complainant may require once she had returned to work.

There are a number of preliminary issues arising in this case.

As in all cases of constructive dismissal there is well established legal authority for the requirement that a complainant must exhaust all internal, workplace remedies before making a complaint.

Some of those authorities are referred to in the submissions of the respondent. As a matter of undisputed fact, the complainant did not do so as she confirmed in her sworn evidence. Her assertion on the complaint form that ‘many efforts were made to resolve the dispute’ appears to relate only to attempts to get a meeting.

 In any event there is no discernible attempt to process her complaint in a way that would be recognised for the purposes of the legal tests.

Not only did she not do so, but she referred her complaint to the WRC on February 7th, 2024, a week before she resigned on February 14th.

The question of a referral to the WRC before a termination takes place, or more accurately takes effect, was considered in A Factory Manager v A Restaurant, ADJ 7932.

In that case authorities relied on were sympathetic to what might traditionally have been seen as ‘premature’ referrals to the WRC.

The particular facts in ADJ 7932 were that the complainant submitted his resignation on March 30th, 2017, and then referred the matter to the WRC some days later on April 4th.

The complication was that in his letter of resignation he stated that his resignation would take effect on April 14th; ten days after the referral to the WRC.

In that case, the complainant noted that the High Court in Brady v EAT  [2015] E.L.R.1referred to the earlier EAT case of Matthews v Sandisk International Limited UD331/2010 which stated as follows:

“The Tribunal holds that the filing of a notice in writing with the Tribunal prior to the date of termination of employment and therefore prior to the period of six months beginning on the date of dismissal but not withdrawn prior to the date of termination of employment constitutes the giving of notice in compliance with Section 8 of the Unfair Dismissals Acts

In his findings the Adjudicator concluded.

I note that the complainant’s contract of employment requires that the employee give two weeks’ notice of termination which the complainant did. I find that the complainant had already left the employment at that point and was complying with the contractual requirement to provide two weeks’ notice to the respondent. The respondent claims that as the complaint was lodged to the WRC on 4th April 2017, which was before the expiry of the notice period, the complaint is premature, and no jurisdiction exists for an Adjudication Officer to hear the complaint.

I note that in Redmond on Dismissal Law, Third Edition, 22.78 page 511, Dr D Ryan refers to the High Court decision in Brady where the Court stated that:

“it would be absurd to find that a claimant should be denied the opportunity to bring a claim for unfair dismissal simply because the adjudicating body had notice of the claim immediately prior to the applicable six-month period.”

The High Court also stated in Brady that:

“Giving notice to the Tribunal on one date such that it has notice on another date complies with the requirements of the Acts.”

It is clear from this that a critically distinguishing feature of the current case is the fact that the complainant had not given any indication of her intention to resign on the date she referred her complaint of dismissal to the WRC.

In ADJ 7932, the Adjudicator places emphasis on the fact that the employment had terminated subject only to the expiry of the contractual notice period, and even though the statutory period for the making of complaints had not actually started the complaint was validly before the Commission.

So, there was nothing speculative about the complaint in that case; a termination had taken place, and the complainant had not returned to work and it was subject only to the expiration of the notice period.

And while the complainant in this case did in fact resign a week after she referred her complaint to the WRC, she falls well outside the principles discussed above in ADJ 7932. The only termination that might be said to have existed on the day the matter was referred to the WRC was in the complainant’s mind, if at all.

That is not sufficient to bring her complaint within jurisdiction.

In any event, the complaint fails utterly the other legal requirements to have exhausted internal mechanisms before a reference to the WRC. To the authorities set out in the respondent’s submission I add the following.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that.

 ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

This eloquently sets out the bar that an employee has to meet and which the complainant has failed utterly to do.

For all these reasons her complaint is not within jurisdiction, and she has not been unfairly dismissed.

For the reasons set out above Complaint CA-0006143909-001 fails and I find that the complainant was not unfairly dismissed.

Constructive unfair dismissal.