ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047531
Parties:
| Complainant | Respondent |
Parties | Rebecca Moorehouse | Monart Spa |
Representatives |
| Loughlin Deegan Solicitor of Byrne Wallace |
Complaint(s):
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-00058565-001 | 29/08/2023 |
Date of Adjudication Hearing: 11/01/2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
A remote hearing was held on the 11th of January 2024 to consider this complaint of constructive dismissal. The Complainant gave evidence from her car while she was on her lunch break. She indicated that she could not be present for the full hearing.
I explained to the Complainant that in order for the hearing to progress she needed to be in attendance. As the burden of proof lay with the Complainant in this matter, I determined that the best course of action would be to hear her evidence and then assess her case on the merits of that evidence alone. If she could establish a case of constructive dismissal the matter would proceed to a second day and the Respondent could provide their own evidence. If she couldn’t then a decision would issue noting that her claim had failed.
Background:
The Complainant joined the Respondent spa in late 2021 as a receptionist. In September 2022 the Complainant was offered the opportunity to train as a spa therapist which would result in a higher rate of pay. As part of this upskilling the Complainant had to do a course which the Respondent paid for. In February 2023 the Complainant began carrying out therapy work.
This required the Complainant to work in darkened therapy rooms without any colleagues for company. In early 2023 the Complainant suffered a bereavement and was separate diagnosed with a B12 deficiency. She realised that the work was not suitable for her and when she came back from leave in Mid-May 2023 she requested to transfer back to reception. The Respondent indicated they would facilitate the request but that they needed the Complainant to remain in post for the time being. About 8 weeks later the Complainant submitted her resignation. The Complainant worked some of her notice but there was then a dispute about rostering and she finished early. She gained employment almost immediately after on a higher rate of pay. |
Summary of Complainant’s Case:
The Complainant attended the hearing and gave evidence under affirmation. Where relevant it is referred to in the findings section. |
Summary of Respondent’s Case:
The Respondent submitted detailed written submissions and their solicitor, Mr Deegan, cross examined the Complainant. |
Findings and Conclusions:
The Unfair Dismissals Act provides that an employee can claim dismissal where: “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.” It is common case that the Complainant voluntarily took up the therapist role, on the recommendation of her management. The Complainant is clear in her evidence that she told management that she had a B12 deficiency in April 2023. She did not submit a doctor’s note or other medical evidence but she had told them. They were also aware of the recent death of her friend. She made it known to management that she was struggling and in May she asked to be put back up to reception. The Respondent agreed to the request but indicated that they could not facilitate it until after the Summer. They also proposed a mixed working solution so that the Complainant could continue to earn more and so reimbursement of the course fees would not be an issue. The Complainant agreed to both these proposals and continued to work in the spa as a therapist expecting to be relocated. However, she started getting more tired at work and became annoyed when a vacancy emerged in reception and she was not immediately given it. The Complainant did accept under cross examination that the Respondent did have to arrange cover for her in her therapy role before giving her a regular reception role. The Complainant did not raise a grievance or escalate matters further. She resigned on the 15th of July and she initially submitted a letter thanking the Respondent for the opportunity to work there. She then appears to have had a falling out over rostering and the course fees the Respondent wanted to clawback. These issues emerged after the Complainant decided to resign so they are not relevant to this decision. The question I must determine is whether the Respondent’s conduct, that is not immediately moving the Complainant back to reception, serious and unreasonable enough to entitle the Complainant to treat herself as terminated. I do not believe this is the case. The Complainant requested to be moved back and did not object to or appeal the Respondent’s position that this request would take the Summer to facilitate. While the Complainant did communicate that she was struggling with the working environment she did not communicate that she needed to be moved immediately or provide any medical evidence to suggest that was the case. It is important to note that she continued to attend work regularly and was not signed off as sick due to these issues. While I accept that the Complainant was experiencing a difficult time she failed to establish or communicate that the situation was so serious that Respondent needed react differently and that their failure to do so entitled her to terminate her employment. |
Decision:
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 find that the complaint is not well founded. |
Dated: 9th February 2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Key Words:
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