Complainant

Respondent

Parties

Monica  Butchart

Holland and Barrett Holland and Barrett Limited

Representatives

  Self-represented

Ciara Casey IBEC

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-00052823-001

14/09/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness for the respondent gave evidence under affirmation.  Both were cross examined.

A member of the public attended the hearing.

The complainant submitted that she had to leave her employment due to the conduct of her employer or others at work.

She submitted that she joined the respondent in 2006 on a full-time basis but stepped down in 2013 and went part-time.  She remained in employment until 2021 when she went out on sick leave.  She submitted that her stress derived from the extra workload she was forced to take on because a work colleague was not doing his share of the work.

She submitted that not only was he not doing his share, but he was making her feel bad about herself by laughing at her mistakes and putting her down in front of customers. She submitted that her confidence diminished and that she was constantly worrying if he was going to belittle and laugh at her at any time in front of customers.  She submitted that she spoke to her manager about his lateness on his phone and not working during working hours.  She submitted that she didn't say anything about what he was doing to her in front of customers to her manager as she felt so ashamed.

The complainant submitted that the manager said that she said she would speak to him about doing his fair share but didn't. Eventually the complainant suggested she herself would speak to him and ask him to pull his weight. The manager agreed with this course of action and said she would follow up on this too.

The complainant submitted that on 7 March 2021 at closing time, she was serving a regular customer, her male colleague was nowhere to be seen.  When a guy who sat in the street just up from out store, came in asking for change.  He asked her to give him notes for coins, the complainant asked the customer whether they were paying by card and when they replied that they were, she told the other person that she couldn't open the till and so she couldn't give him an exchange.

The complainant submitted that the person was annoyed and was cursing at her saying that she didn’t want to exchange the coins.  The complainant became stressed. The customer was stunned with this and then her male colleague appeared.  The complainant enquired as to where he was and noted that she had just been abused, the customer said to him the abuse was threatening. The complainant submitted that she said to her colleague that it's 6pm and the shop is a mess and that she will be blamed not him.

The complainant submitted that she couldn't cope anymore and after a sleepless night went to her GP with blurred vision and not sleeping. She went on sick leave for 5 weeks and at all times communicated with her manager in reference to her health and absence.   She submitted that when she felt a little better, she went for a meeting with her manager who said she had spoken to the male colleague and that before she returned a meeting would take place with him, and the complainant with the manager present.

The complainant submitted that when she returned to work, a meeting was held at 2pm that day even though it had been said that it would be before she returned.  The complainant submitted that her manager had also reassured her that she would no longer be working with her male colleague and her shifts would be changed but this didn't happen either. Instead of Sunday working with him, she was now working with him on Fridays, her managers half day.

That evening the man from the previous incident was standing at the till as she brought a customer to the till. He said that he was waiting for her colleague to come back.  There was a pile of coins on the counter, about 60 euros in every denomination. Her colleague arrived back from the office with the notes to exchange for the coins on the counter. The complainant submitted that she really couldn't believe this because she had told my manager about this man.   The following Sunday the complainant spoke to her assistant manager about this, and who said that just she opens the till and gives him the notes. The complainant noted that this is dangerous. She submitted that she again spoke to her manager about this man, about how uncomfortable he made her feel. Her manager said that he was harmless.

The complainant submitted that on 1 April 21 she was asked to cover for a colleague short notice.  She arrived at work at 11.  At around noon, while she was stock managing, a company health and safety representative came in.  The complainant submitted that she became so overwhelmed with panic that she couldn't think.  She did not know where the fire log book was and was so stressed.  The complainant submitted that the store failed on a lot of things that day.

The complainant submitted that the following Friday she went into work and was met by her regional manager in the hallway.  The complainant outlined what had happened and she continued to tell her how panicked she was and unprepared for the visit. The complainant submitted that her regional manager could not understand.  The complainant submitted that she said to her "You don't understand, do you? You don't know what it's like to not be able to think, to feel panicked, that feeling of being overwhelmed, you really don't know” and noted that she was upset.

The complainant submitted that her manager then told her that there would be a meeting that evening would be about the failed health and safety audit. The complainant submitted that she worked that day and felt something was not right. The complainant submitted that at the meeting that evening, she was verbally abused, shouted at, pointed in the face by her manager, and told several times “theres the f***ing door”, humiliated and put down in front of her fellow workers. The manager kept repeating that she couldn’t trust anyone, all the while cursing at the staff.

The complainant submitted that she was made to feel that she was the cause of the failed health & safety audit. She submitted that following various abusive comments to the staff, the meeting returned to the health and safety visit, and she knew her managers anger was directed at her, blaming her for the failed audit.  She tried telling her how stressed she was and unprepared for the visit. The complainant submitted that when her manager said that she “couldn’t bring the complainant in, if a visit was due to take place because her head is not well”.   The complainant submitted that when she heard this, she stood up and said she couldn’t take any more of this abuse.  Her manager replied yeah, go and the complainant did.

The complainant submitted that once outside she rang her husband to collect her and while waiting emailed the regional manager.  She told her what just happened, but she did not reply.

The next morning the complainant messaged her manager self-certifying as sick.  She was told to ring the store but noted to the regional manager that she could not as she would be cursed at again.  She later did and her manager told her not to put in a grievance and that she could take as much sick leave as she wanted, no questions asked.

The complainant submitted that she felt her regional manager would only side with her manager and so she sought legal advice. She submitted that when her employer started to send her to wellness meetings, she genuinely thought that they were trying to break her altogether, and her anxiety worsened.

The complainant submitted that she resigned in April 2022, a year after all this happened because she was given wrong advice by her solicitors. She submitted that she didn't know that she should have resigned from her position before the first WRC complaint was put in.  When that was heard, the adjudicator on the day said she would have to submit a new complaint form as she had recently resigned from her position. The complainant noted that due to the company's failure to act on thorny issues and be genuinely there for her care, she could never return and work for them again.

In her evidence the complainant said that she resigned because she felt she couldn't continue as she was being humiliated. She said it all started when someone came in off the street but after that at a meeting on 9 April 2021, she was verbally abused by the manager. She emailed the regional manager and told her what happened but got no response. She noted that an incident report was not made but she self-certified as sick. She was told that she would have to ring in if she was going to be out sick. She told her regional manager that she could not ring her manager again but ultimately, she did ring her manager that day to tell her she was out sick.

The complainant said she rang her solicitor who told her she needed to get out of the company, she said there was no grievance procedure and that she needed to take time out [as per her doctor's advice].

The complainant stated that when the health and safety inspection took place, she had a panic attack and she couldn't think.  She tried to explain that she wasn't in charge on the day of the inspection but couldn't manage to explain herself. She noted that she resigned following a year's sick leave and submitted that she made a written complaint which went unanswered.

Under cross examination it was put to her that she did have an alternative and was not forced to leave. It was put to her that there was an option open to raise a grievance even after the resignation but she had not done so. The complainant noted that her colleague was not pulling his weight and although she raised it with the manager it was not pursued. It was put to her that she did receive an answer to her complaint however the complainant noted that her solicitors told her that they would deal with matters.

It was put to the complainant that after her resignation the company responded to her, and she confirmed that they did and that one of those contacts offered her the use of the grievance procedure. She queried what benefit the grievance procedure would have made after she had resigned. It was put to her that although she said that she was forced to leave because of incidents in April 2021, in fact she only left in April 2022 and that she never had any intention of returning to work. It was put to her that she had no intention of allowing the company to look into these matters whatsoever.

It was put to the complainant that she took a constructive dismissal complaint in August 2021 but continued to submit medical certificates to the company yet refused to engage with the company.

As regards her losses, she noted that she went back to undertake courses in May 2022 and July 2022. It was noted that she was unfit to work until May 2022 but that she went back to work in the final week of June.

The respondent submitted that the complainant started employment with the respondent on 1 May 2019 as a result of a transfer of undertakings. Her continuity of service is from 27 March 2006. She was employed on a part-time contract, working 16 hours a week, earning €11.45 per hour gross. Her employment terminated on 26 April 2022 by reason of resignation.

The respondent submitted that the complainant submitted a number of sick certificates covering the period 12 February to 19 March 2021. Following her return to work the store where she worked was the subject of a health and safety audit from head office. This is standard practice within the Company.  A number of issues were identified as result of this audit and the manager had a discussion with her team regarding the outcome.

Following this meeting the complainant contacted the regional manager indicating that she was not going to let her Manager shout, curse and swear at her again. The Regional Manager contacted the complainant offering her the opportunity to raise a grievance in relation to any issues or concerns she had.  As a result of the issues that the complainant raised, the Regional Manager had a conversation with the store manager regarding the issue of inappropriate behaviour outlined in the complainant’s email. However, the company were not provided with any further details in relation to this issue and were not given the opportunity to investigate this further.

The respondent submitted that on 12 April 2021, the complainant submitted further sick certs covering the period 10 April to 9 May 2021.  On 23 April 2021, the respondent received further correspondence from the complainant’s solicitor outlining she was subject to behaviour and comments from a colleague which made her feel belittled in her role. This letter specified that the complainant did not disclose all the details to the respondent previously. In this letter, they outlined that the complainant had a case for constructive dismissal. Therefore, they requested the following:

• an ex-gratia payment in the sum of €15,000.00 in lieu of damages and being equivalent to redundancy payment for the period of employment
• notice period pursuant to Minimum Notice and Terms of Employment Act 1973-2001
• holiday pay and other accrued rights under statute
• contribution to Legal Fees of €1,500.00 plus VAT

The respondent submitted that the complainant submitted further sick certs 8 May to 5 June 2021.

The respondent submitted that on 21 May 2021, it wrote to the complainant inviting her to attend a welfare meeting due to her ongoing absence since 10 April 2021. This meeting was scheduled for 24 May 2021. Within this invite, the complainant was advised of her right to be represented. It was submitted that it is common practice for the organisation to schedule welfare meetings when employees are out for prolonged periods, to offer support and ascertain if there is anything it can do to facilitate their return to work.

On the same day, the respondent received correspondence via the complainant’s solicitor regarding the complainants Data Access Request. Furthermore, they advised that the complainant would not be attending the welfare meeting as she was scheduled to receive her Covid-19 vaccination on that date.

On 27 May 2021, the respondent replied to the solicitor's correspondence from 23 April 2021, outlining the DSAR was with the relevant department to complete. Furthermore, the Regional Manager outlined that there are policies in place to support employees with any issues they have in relation to their employment, and they encourage employees to raise any issues via the appropriate channels so they can be investigated in line with this.

The respondent submitted that what followed was a series of invitations to attend welfare meetings which were declined, and sick certificates being submitted to the respondent.  In October the respondent received correspondence from the complainant's solicitor once again seeking to settle matters and seeking a contribution towards legal costs.

The respondent continued to invite the complainant to attend welfare meetings. These invitations were continually declined, and the complainant continued to submit sick certificates. At the end of November, the complainant was invited that if she wished to do so she should make a grievance via the grievance procedure. The respondent continued to schedule welfare meetings which the complainant did not attend.

In December, an employee relations advisor for the company requested the complainant consent to an occupational health referral. However, this request was not responded to.

On 26 April 2022, the complainant resigned from her position with the respondent.  On the same day, the Regional Manager responded to the complainant’s resignation and offered her the opportunity to raise a grievance during their phone call on 10 April 2021, but she did not hear anything back. The respondent further encouraged the complainant to raise a grievance on numerous occasions and left this option open to her even after her resignation if she wished to avail of this.

On 6 May 2022, the Regional Manager had a call with the complainant further to her email of 26 April 2022. The grievance process was explained to the complainant, however she outlined she did not want to go through the process. However, the complainant asked if raising a grievance would be of any monetary benefit to her.

The respondent submitted that on 17 June 2022, it attended a WRC hearing with the complainant in relation to a constructive dismissal claim. This claim was struck out because the complainant had submitted her initial WRC claim on 6 August 2021, 8 months prior to her resignation, therefore, the adjudicator had no jurisdiction to hear the claim.  The respondent submitted that on 14 September 2022, the Complainant submitted her second claim for constructive dismissal to the WRC.

The respondent submitted that Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) defines dismissal in relation to an employee as, inter alia:

“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 respondent submitted that in light of this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that:

a) The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

b) The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. The respondent submitted that neither criterion has been met in this case.

The respondent submitted that as far as the Contractual test goes, it operated at all times within the terms of the contract of employment between the parties. No contractual violation occurred. The respondent draws on the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 to confirm this position.  The respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what was before”.

The respondent submitted that it fulfilled its contractual obligations, implied and otherwise, at all times. In light of this, it is the respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.

The respondent submitted that as far as the Reasonableness test is concerned, its position is that there exist two interwoven factors to be considered:

a)       did the employer act unreasonably so as to render the relationship intolerable, and

b)      did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures.

The respondent submitted that this is in accordance with established approaches as expressed by the Tribunal, for example in McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The respondent submitted that it did not dismiss the complainant, either constructively or at all.

On the issue of reasonableness and the conduct of the employer, the respondent submitted that it always acted reasonably and fairly, in accordance with its policies, best practice, and appropriate conduct.  It was not outlined in the complainants’ medical certificates that her absence was work-related, and the respondent was reasonable in engaging with the complainant, as they would any other employee, in an attempt to resolve any issues via its procedures.

The respondent submitted that it is accepted that while this was a difficult situation for the complainant, nevertheless, it had a responsibility and duty of care to deal with the matter in accordance with its policies and procedures. Furthermore, the respondent submitted that it showed its willingness to accommodate the complainant on a number of occasions throughout the 15 months prior to her departure, and offered their time, support and EAP services to ensure that any concerns she had could be properly addressed.

As far as the reasonableness of the complainant in relation to exhausting procedures, the respondent submitted that it has a comprehensive Company grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).

The respondent submitted that in advance of furnishing her resignation, the complainant could have notified the respondent of the details of her issues in relation to her employment and utilised internal procedures to resolve any grievance. However, she failed to do this.

The respondent submitted that the complainant acted in a hasty and unreasonable manner by resigning from her position before notifying the respondent the specific details of her concerns and in advance of exhausting internal procedures.  As such, she did not act reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank)

The respondent submitted that the obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract. In Travers v MBNA Ireland Limited, UD720/2006 the complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found:

“the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. The Tribunal thus found in that case that the Complainant was not constructively dismissed.

The respondent submitted that just as it is unacceptable in the case of a non-constructive dismissal for an employer to dismiss without recourse to fair and comprehensive procedures, it is also insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures. The respondent’s position that the complainant failed to establish the burden of proof that her actions were reasonable. As in Travers v MBNA, it is the respondent’s position that the complainant’s failure to utilise/exhaust internal grievance procedures is detrimental to her claim.

The respondent referred to Fitzsimons v Mount Carmel Hospital, UD855/2007. In that case, in the complainant’s letter of resignation, a complaint was raised against the complainant’s manager. The respondent conducted a “full investigation” and extended an invitation to return to work. The respondent further “was open to meeting requests and provisions which may reasonably attach to the said return to work” and an offer was made to “bring in a mediator to facilitate a harmonious return to the workplace if that was possible”. The complainant rejected the offer of return on the grounds that her relationship with her manager had deteriorated so much.  The Tribunal stated:

“It is regrettable that this final step [of acceptance of the return to work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through. The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties”.

The respondent submitted that by virtue of the above, the complainant’s resignation does not fulfil the test of reasonableness and thus cannot be determined to be a constructive dismissal.  It submitted that the complainant was unreasonable in failing to engage with it to address any outstanding complaints. Rather, she engaged her own legal representative from the beginning of the process and refused to engage with the Respondent directly. At no point did she inform the respondent of the specific details of her issues as outlined in the complaint form, but filed the within claim, without giving the respondent any opportunity to address the issues.

The respondent submitted that in the case of Peadar Duane v Masonry Fixing Services Limited, UD35/2013, the EAT ruled that:

“It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve it”.

In this case the complainant did not give his employer the opportunity to adequately investigate his issues and therefore the claim under the Unfair Dismissals Acts 1977 to 2007 failed.

As regards the complainant’s loss, the respondent submitted that the amount of any award of compensation must be reasonable in light of all the circumstances taking account of the complainants conduct in accordance with section 7(2)(b) of the Unfair Dismissals Acts 1977, as amended, and in light of the financial loss incurred by the Complainant since her date of dismissal.

The respondent referred to Sheehan v Continental Administration Co UD858/1999, in which the EAT held that:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work, nor merely to post an application to various companies seeking work. The time that a claimant finds of his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

The respondent concluded by submitting that it, in no way repudiated the contract of employment, but rather operated the employment relationship at all times within the parameters of that contractual relationship. Furthermore, it’s interactions with the complainant were at all times reasonable, and the complainant’s action in failing to utilise and exhaust the internal grievance procedures amounted to unreasonableness on her part. In light of that, it is the respondent’s position that the complainant was not dismissed, constructively or otherwise, from her employment.

The respondents witness was the regional manager.  She outlined that she missed the point of support for the complainant and welfare meetings. She was aware of the issues but they were being managed on an informal basis.

She noted that she received an e-mail from the complainant on Saturday morning to end of April and asked her to follow the process. She noted that she would welcome a formal complaint but spoke with the manager informally. She confirmed that nothing was raised formally so she was not in a position to move matters beyond the informal. She confirmed that she only received detail from the complainants solicitor. She denied that she told the complainant not to raise a grievance.

The witness confirmed that she followed up contacts with the complainant with acknowledgement offers of welfare meetings and support including the employee assistance programme which includes counselling and gives people an opportunity to explore issues that they're facing. She confirmed again that she offered the complainant the opportunity to raise a grievance and shared the policy verbally with the complainant and she said that human resources followed this up.

Under cross examination the complainant asked the witness how she showed support she confirmed that she thought she did but the complainant said no she didn't. The witness was asked why the complainant had to ring when she did not have to do so previously, she confirmed that she was not aware of what happened previously. The complainant asked the witness why she received two emails and the witness replied she was not sure why two emails were sent when one would have done.

The witness was asked why she said in emails that complainant was gone out as a result of the health and safety visit. The witness respondedthat did she did not know what the complainant was referring to.

The complainant has submitted that she was constructively unfairly dismissed from her employment with the respondent. She submitted her resignation in April 2022.  In order to satisfy the high bar that exists to establish a constructive unfair dismissal, a complainant must establish that she was entitled to resign because of the conduct of the employer or that it would have been reasonable for her to terminate her contract of employment.  This principle derived from legislation and as noted by the respondent, established the principles adopted by courts and tribunals which show that there is a burden upon a complainant to show a breach of contract on the part of the employer or to establish that the employer acted so unreasonably as to make continuation of the employment intolerable.

The caselaw also outlines the burden which rests upon an employee to demonstrate that they have acted reasonably and have exhausted all internal procedures formal or otherwise to resolve agreement with an employer. The respondent referred to the case of McCormack v Dunnes Stores when submitting this point.  I note that the respondent had a grievance policy and procedure in place and that the complainant was offered the opportunity to utilise this mechanism on more than one occasion, both prior to and after submitting her resignation.

I note that the respondent submitted that its grievance procedure complies with the Code of Practice on Grievance and Disciplinary Procedures outlined in the Statutory Instrument 146 of 2000. I am satisfied, from the evidence of both the respondent witness and from the complainant herself, that the complainant was aware of the existence of the Grievance procedure.

The complainant failed to take any action under the grievance procedure, instead resorting from the outset to the submission of sick leave certificates and refusing to engage with the internal dispute resolution mechanisms of the company at any stage. I note where the Tribunal held the following in the case of Conway v Ulster Bank UDA 474/1981, a complainant “did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints”.

Although the complainant’s manager may have acted unreasonably when dealing with staffing matters in the meeting of April 9, the respondent operates a grievance procedure through which she could have sought assistance. The complainant did not submit that this procedure was ineffective or that there was another reason why she could not resort to the procedure.  She did not utilise that grievance procedure substantially or at all and accordingly, to my mind, did not act reasonably when submitting her resignation in the way she did so.

Although the complainant appears to have received advice that was unhelpful to her cause, the ensuing delay afforded her an opportunity when she was still an employee to seek to pursue a complaint through the grievance procedure. The respondent offered her this option on more than one occasion and the procedure was explained to her by the regional manager. This assertion was not contested by the complainant. Notwithstanding the elongated time period involved, the complainant neither engaged with the respondent nor instituted a grievance. I find that this is fatal to the complainant’s case and that she cannot subsequently seek to rely upon a constructive dismissal without having first substantially utilised the existing grievance procedure or otherwise explored options other than resignation.  Accordingly, I find that the complainant was not unfairly dismissed constructively or otherwise.

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissal – grievance procedure not utilised – not unfairly dismissed.