Complainant

Respondent

Parties

Dora  Koszo

MM Fiber Packaging Ireland Ltd.

Representatives

 Independent Workers' Union (IWU)

IBEC

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-00053330-001

18/10/2022

In attendance:

For the Complainant:

Mr. Jamie Murphy , of the Irish Workers Union (IWU)

Ms. Dora Koszo – the Complainant

For the Respondent:

Ms. Lisa Moloney, of IBEC

Ms. Pauline Ayers – HRBP, of the Respondent

Mr. Ricky Liske – Production Manager, of the Respondent

Mr. Shane O’Sullivan – MD of the local site [He explained that the site is one of a family of sites.]

The name of the Respondent company was amended, in the decision, on the consent of the Respondent.

This case involves a complaint of constructive dismissal. The Complainant had previously worked a weekday shift for the Respondent company, and she then went on maternity leave. Prior to her return from maternity leave, she requested a change to the weekend shift, as her partner also worked for the Respondent company, and they planned on splitting the childcare between them. It is the Complainant’s case that she was offered the weekend shift by the Respondent company and given a start date, that the offer was subsequently rescinded by the Respondent company before she had an opportunity to take it up. The Complainant submits that that there was a lack of communication from the Respondent company, and that she was left ‘in limbo’ and confused as to why the proffered weekend shift was now not going ahead for her; and that while other proposals were made to her in terms of shift pattern/parental leave, the weekend shift was never offered to her again and she submits that she was left with no choice but to resign her employment.

The Respondent denies the Complainant’s claims. While the facts are broadly not in dispute – it submits that it did not dismiss the Complainant constructively or at all; that the offer in relation to the weekend shift was never finalised – the letter setting out the terms was not signed; that the Respondent engaged with the Complainant in order to find a solution that would work for her and her family circumstances, that it wished to retain her as an employee and that she was a valued employee, and a very good worker. It further submits that the weekend shift is not a permanent arrangement for any employee – that the terms of the draft letter, as set out, mean that an employee on the weekend shift can be moved back to their previous shift by the employer with two weeks’ notice; and further, that the draft letter sets out a three month trial period after which it would be reviewed, in terms of the Complainant’s move. It further submits that the Complainant never raised a grievance, which it submits is fatal to any claim for constructive dismissal.   

As per the Complainant’s complaint form

The Complainant submits that she worked for the Respondent company as a General Operative since February 2019. She was on maternity leave from 4th October 2021 until 12th April 2022.

She submits that, in terms of her return-to-work post-statutory leave, she expressed interest in taking up a weekend shift, as opposed to her regular shift of Monday to Friday; and that this was a necessary change as with her newborn, she could not work her old shift.

On 11th March, 2022, the Complainant submits that her new shift was confirmed to her via email, with an attached contract, and she was due to start the weekend shift from 3rd April, 2022.

On 31st March, 2022, she submits that she received notice that this contract was cancelled and that she would have to resume the weekday shift. She submits that the only explanation provided to her was that "HR made a mistake." She submits that she had cancelled her social welfare payments because of the promise of her new contract, so her income has been severely affected by this development.

She submits that, with the help of her union representative, she tried to resolve the matter locally, but the company has refused to correspond with her chosen representative.

She submits that she felt she had no choice but to resign from her job, as she could not work what they were offering her, and the potential of the weekend shift was not on the table.

At the hearing

Opening remarks by Mr. Jamie Murphy of the IWU, representative on behalf of the Complainant:

The Complainant worked for the Respondent since 2019, and then went on maternity leave. Prior to her return from maternity leave, the Complainant asked to be put on the weekend shift. That was agreed with the company and a contract provided, which was signed by Mr. Shane O’Sullivan MD – Appendix 1 and accepted by the worker. She had an agreed start date. A few weeks later, on 25th March, 2022, the Complainant was emailed by Mr. Shane O’Sullivan and told that the start date was being put on hold by the company due to correspondence from SIPTU (the Complainant was not represented by SIPTU at the time).

Mr. Murphy submitted that there was correspondence back and forth between the parties, and the Complainant requested an explanation but none was forthcoming. Then, she was told that the weekend shift was not available but another option – a weekday shift on a rotational basis was suggested. The Respondent did not recognise IWI (union) – this was outlined in correspondence by Ms. Pauline Ayers, HRBP of the Respondent company. Meetings were facilitated. No substantial excuse was provided. He submitted that the Respondent company was acting in an unreasonable and erratic way which created a breakdown of trust between the Complainant and the company. This resulted in the Complainant tendering her resignation.

Ms. Dora Koszo – the Complainant – gave evidence on her own behalf.

The Complainant outlined that she worked as a general operative – her role involved her working by machine, printing out leaflets and putting them into boxes.

Prior to going on maternity leave, she was working three (3) shifts – morning, evening and night, working an average of 36.5 hours per week.

She applied for the weekend shift in March 2022.

She explained that as she had had a baby, the weekend shift would work much better for her and her partner. She said that her partner also worked for the Respondent business, and they planned to split the work and the minding of the baby. She explained that the weekend shift involved one day during the week (8 hours) and a Saturday (12 hours) and a Sunday (12 hours), for a total of 32 hours per week.

She said that she was offered a contract that would have been “perfect” for her and that she was “looking forward to it.”

She said that she then got an email, and she received a phone call from Mr. Shane O’Sullivan, who told her that she could not start as planned. She explained that the delay was because of SIPTU.

She said that at every meeting she had with the company, she was told that the weekend shift was now not available. She said that there was “no proper answer” as to why. She said that there was “no proper time they told me that it is kind of over” and that [she] “kept going back and asking.”

She outlined the alternatives suggested to her by the company: She explained that three were two other shifts – the morning and the afternoon shift. She said that it was suggested to her that she could have taken parental leave two (2) days a week and work three (3) days a week “but that just wasn’t good for me.”

She said that the main reason that the alternatives were suggested was that she was now being told “there was no weekend shift” but expressed being confused by this, saying “but it was offered for me, so I just didn’t know why.”

She outlined health difficulties that she was having at the time. She explained that she had been pregnant but suffered a miscarriage and that she also had trouble with her thyroid (which is exacerbated by stress). She said that she was looking forward to going back to work. She explained that the whole thing was very stressful. She said that she was then “told to stay out/at home on illness benefit” and re-iterated how “stressful, very stressful” the experience was. She said: “Eventually, I left.” She said that she “went into so many meetings”, that she had “asked for them.” She said that was told “the weekend shift was off the table for me.”

She was asked if she had since found alternative employment. She explained that she had, that she was “working in a small shop, part-time, Thursday evening to Sunday evening” and that she was earning 12 euro per hour, working 20-25 hours per week on average.

On Cross-examination

The draft letter from Mr. Shane O’Sullivan, MD, was put to her, which sets out, “In case either yourself or the Company wishes to change this shift arrangement back to a five day week shift, that can be done with two weeks’ notice given.” and she was asked whether she was paid the two weeks’ notice. The Complainant said: “Yes, after I asked for them because I got no notice.” She said: “Basically, before I left the company, they paid me two weeks’ notice.”

She was asked about submitted sick notes and whether she had been unfit to work. She explained that she had been out sick since January 1st 2022, that she was fit to work when she was asking for the weekend shift, in March 2022. She said that the with “all the stress and everything [else]”, that her doctors had to treat her between the months of April 2022 to October 2022.

It was put to the Complainant that there were quite a number of correspondences between her and the Respondent company. It was put to her that a permanent weekend shift was never offered to her. [The draft letter from Mr. Shane O’Sullivan refers to being offered the shift “initially on a temporary basis for three months.” It was put to the Complainant that the letter was never actually signed. She said: “This is the letter I received.” The Complainant said that she “got a contract and a starting date.” She was asked whether she had raised a grievance at any point. She confirmed that she had not.

Mr. Murphy, of IWI –closing remarks on behalf of the Complainant

He submitted on behalf of the Complainant, that from her perspective, what took place over six to seven months, was that she was offered a new position in the company (subject to change) and then without adequate explanation, it was no longer available that the Complainant was told that it could not be offered at this point, that it was “not a road we could go down at this point.” He said that there was “smoke and mirrors”, and he submitted that there was a breakdown of trust between the company and her. He said that while other offers were made, these were not suitable for her.

Opening Statement – Ms. Lisa Moloney, of IBEC, on behalf of the Respondent.

Ms. Moloney outlined that a request was made by the employee to explore the possibility of a different shift pattern. She explained that expressions of interest were then received from other employees – it caused a difficulty - employees felt it was unfair as there had been no application process for this shift and it was a coveted shift, given the terms and conditions (and that there was very little turnover of employees on the shift – it rarely if ever became available). She explained, that in fact, there was no demand (business need) to move an employee to the weekend shift and that there was no need to run a recruitment drive. She outlined that a move to the shift came with a term that an employee could be moved off the shift with two weeks’ notice, and that notice period had been paid to the Complainant.

She also outlined that the Respondent company had explored every other option possible, including the Complainant working three days a week and utilising parental leave for the other two days per week; or alternatively providing her with off-set shifts, as against the Complainant’s partner’s shift pattern (who also works for the company).

She submitted that no grievance was ever raised, which she submitted was fatal, to a claim for constructive dismissal.

Mr. Shane O’Sullivan –  first witness for the Respondent – Plant Manager (Managing Director of site)

Mr. Shane O’Sullivan outline that he was the managing director of the site (that the site was one of a network of sites), and he said that, in terms of job content, he was the plant manager, that he was involved in detail and production relation matters, as well as all other matters that affect the site.

He outlined that he received an email from the Complainant, requesting a face-to-face meeting. He said that there was a fixed group of employees – five on machines + one setter, on the weekend shift. He said that they were not advertising, that it was a “very settled crew” and that there was “no open role.” He said that the company undertook to explore if it was feasible, from different aspects [for the Complainant to join the weekend shift.]

He was asked why, in those circumstances, the request considered was considered. He said: “We do try to be flexible for people.” He said that “it would have been easier to just say no, but [he] presented a listening ear as we do for all employees and tried to provide some accommodation for Dora (as we do).”

He said that from a “personal values point of view – I don’t want to be making promises that I can’t meet afterwards.”

After this meeting, he outlined that there were a number of email contacts. They considered “would it make sense to explore this?” Would the company need “cover for the summer” perhaps? Is there “a rational basis for some cover for the summer?” He said that he “spoke to the key person on the shift to see could the shift be expanded.”

He said that he was willing to explore it. He said that the change was “not permanent” for any of the employees and outlined the “two (2) weeks’ notice” requirement explore further

He said: “At no time, in my recollection did I sign this letter.” He said that “no start date was implemented”, that it was “discussed in the meeting but not communicated in email or hard copy.”

He outlined that subsequent to that, he “received representations from two different channels – one person (similar family situation to Dora) asking to be considered for that weekend shift” and secondly, “official representation – SIPTU (requested no further change until meeting held – no change implemented).”

He said that the company regularly accommodates requests for meetings by the social partners, that “good communication keeps things moving.” He said that what emerged from that communication was that other people would be interested in that weekend shift, that the view expressed was that the weekend shift should be advertised, and that seniority should be considered. He said that an internal meeting was then held, with no third parties present, and it was decided not to go ahead with the creation of the role.

He said that a move to the weekend shift “cannot ever be seen as a trial basis”, that “it’s driven by customer demand – all weekend shift people have the two weeks’ notice provision”, that “if there’s no demand, everyone reverts back to their normal shift.” He said that the “weekend shift is a more expensive arrangement than their weekday shift.”

He said that after that, “new information” came to light, there were “expressions of interest from other employees” and the company “decided not to go ahead with it.” He outlined that “one aspect would have been seniority – that would immediately rule Dora out.”

He said that he “did ring Dora” he “did inform her that the weekend shift is not going ahead for her” that “issues have come up in relation to other employees wanting to be on that shift.” He said that he “didn’t refer to another union – ultimately, it’s a company decision, not a third-party decision.” He said that he sent an email setting out that there was “a delay in starting”, a delay in “going ahead.”

He was asked whether he had any further interactions. He said: “From my recollection, no. Pauline [Ayers] took over the correspondence.”

On Cross-examination

He was asked whether there was a possible sixth role which was being potentially made open for the Complainant. He said: “Yes.”

He outlined that “If I sign my name under something, it’s a formal document.” But he said that this was “a blank document, no date.” He said: “In my view, we hadn’t crossed all t’s and dotted all i’s.”

It was put to him that there are different ways of interpreting getting a document like this, and it was the Complainant’s view that she had been offered a contract. He said: “It’s fair to say that we had gone very far along the road” but said that there was “no signed letter.” He said that the Complainant “was not appointed to that weekend shift”, that the “appointment never took place.”

He expressed the view, when asked about it, that the payment of the two weeks’ notice was a “goodwill gesture in my view” and “a good practice to pay the two weeks’ notice.”

He said that the company “never adopts an adversarial position towards our employees” explaining that it wanted “a good social climate.”

He said: “I understand that that [the letter] might have been interpreted as an offer.”

He said that his phone call with the Complainant was “brief”, that the purpose in making the phone call was to “inform [the Complainant] that the weekend shift wouldn’t be happening for her.” He said that he could not remember verbatim what he said to her – he did not make contemporaneous notes, but that he expressed that “problems with other employees had come up” and he explained that “he did not refer to an organ like SIPTU.” He re-iterated the view that the decision was one taken by the company, not a third party.

In terms of the timeline, he clarified that the draft letter was sent on 11/03/2022, the update email was sent on 25th March 2022; and the phone call after the email, subsequent to meeting with SIPTU and the internal meeting took place on 2nd April, 2022.

Ms. Pauline Ayres – second witness for the Respondent – Human Resources Business Partner (HRBP) at the Respondent company

Ms. Pauline Ayres outlined that she joined the Respondent company on 11th April, 2022, that she was there about two (2) weeks with the company, when she was introduced to the situation – around 20th April 2022.

She said that the Complainant requested a meeting – it was very casual, the witness met the Complainant’s baby. The witness said that she had spoken to Ricky the production manager about how the weekend shift was not available and then discussed other options (at subsequent meeting). She said they may have looked at the Complainant coming back on days fully.

Ms. Ayers said that she and the production manager met with the Complainant in June to discuss options – she was potentially offered all nights, then all evenings (as her partner worked there, and they did not want to clash). The witness said that the other option was all days, but that would not work. She said that she told the Complainant “to go away and have a think herself, because [the production manager] was willing to be quite flexible.”

She outlined that the last meeting was in September (Ricky, Pauline, Dora attended). At that meeting, three (3) days per week was suggested by the Complainant, but the company does not offer part-time work, and could not offer it to her and not to others. So, the company suggested three (3) days on and two (2) off on parental leave. She said that she left thinking it was a positive meeting, and that perhaps it was something the Complainant may do. She said that she never got a response.

She outlined that in June 2022, she received a letter from Mr. Murphy IWU, but the Respondent did not recognise the IWU. She said that the Complainant had representation on site.

She outlined that the next correspondence related to the fact that there was an impasse and a severance package.

She said that on 19th October, 2022, that she received a phone call from the Complainant, asking if she had received her email two days earlier. She said that the Complainant “was a valued employee, we definitely believed she would come back, we wanted her back in this business.”

She said that she spoke to Mr. Ricky Liske about it. She said that she offered the Complainant a retraction. She said that there were discussions, including with the Managing Director, Mr. Shane O’Sullivan. She said that they wanted the Complainant to come back. She said that the Complainant was “very polite” – “she said ‘thank you’ but she was resigning.”

The witness said that her last interaction with the Complainant related to the breakdown of the monies paid to her – the holiday bonus (the Complainant asked about it); she was also paid the two (2) weeks’ notice and was paid outstanding holidays she had accrued.

She confirmed that no grievance had been raised by the Complainant.

On Cross-examination

It was put to the witness that the company says this was a return to work rather than grievance but that it was not put to Ms. Kosza that a grievance could be lodged that the weekend shift was no longer available.

She said that the company offered the Complainant could have representative with her for the last meeting.

[The issue around the refusal to acknowledge the IWI was raised; as was the fact that the Complainant was paying union dues.]

Ms. Ayers said that “the weekend shift – that is all she wanted.”

It was put to her that the Complainant wanted the company to honour the offer it made to her. She said that “it wasn’t a signed contract” and she said that the company “still has an agreement no matter what, given two weeks’ notice, [an employee] can be changed back anyway.”

She said that it was her view that Mr. Shane O’Sullivan had been “careful in the ways he had set it out”, that there was to be a “trial period” and, additionally, that there was a two-week “notice period” in any case, where any employee could be changed back to their previous shift from the weekend shift.

Mr. Ricky Liske – third witness for the Respondent – Production Manager

He outlined that he is the production manager, and that he has worked for the Respondent company for thirty (30) years.

He outlined the shift patterns, in production. He said that a limited number of people were working an 8 – 4.30 pattern; that the main shift, is a three (3) shift rotation: 6 am – 2 pm, 2 pm – 10 pm, 10 pm – 6 am; that a double shift is two of those (no nights) He explained that “weekenders” were “taken off the three-rotation shift.” He said that the weekend shift was started in “2015, there or thereabouts.” He said that “all shifts are subject to change”, that “two (2) weeks’ notice [is] given” and that the company would “often do a step-down.”

He outlined that there were meetings held with the Complainant, and several options were explored with her – one was that she would have shifts opposite her partner’s shifts, to take away childcare expenses. Both the production manager, and HR met with the Complainant.

He said that the Complainant was out sick during the summer, out sick at the end of the summer.

He said it then became “probably slightly more formal as regards return to work - they met in boardroom, and the Complainant offered the right to be represented.”

He said they were “looking at trying to get a solution”, that they had already brought up the offers they had offered, and they were trying to find a better solution. He said that “parental leave was suggested.” He said that some “other employees do that, that parental leave is 26 weeks, which works out as nearly two years [when spread out, as suggested].” He said that “the company was placing no restrictions on that.”

He said that it was “important to us on a fairness level”, that the Respondent was “a very family-oriented business”, that it had “always tried to facilitate families” and “ultimately, the idea is that they will come back eventually as full-time employees, especially the good people we try to keep them.”

He said, of the meeting, “I assumed on the day the option Dora was considering was the parental leave.”

On Cross-examination

He was asked what reason was given that she could not move to the weekend shift. He said that “it was not something I could offer. It wasn’t available as an option.”

In response to a query from the Adjudication Officer, he outlined that there is a cohort of approximately seventy (70) employees in total.

Ms. Moloney, of IBEC – closing remarks, on behalf of the Respondent.

The Complainant was hired on a three (3) shift pattern, which is set out in her contract. It is disputed that the letter sent constituted a contract. It was never signed. There is a provision within the letter, in any case, which requires two (2) weeks’ notice of a change, and the proposed new shift was subject to a three (3) month trial period.

It is submitted that no grievance was made at this point. It is submitted that case law defines clear methods, procedures and the Respondent is relying upon Conway V. Ulster Bank UD [1981] 474 and Travers V MBNA (UD720/2006), in this regard. It is submitted that the failure to raise a grievance is fatal to a constructive dismissal case.

A matter to be considered is the reasonableness of the conduct of the employer. It is submitted that the employer was very reasonable and was looking for any option that was available.

Constructive dismissal – burden of proof

In this case, the Complainant alleges that her employer through its handling of the issue of her proposed move to the weekend shift, on her return from protective leave, dissolved the trust and confidence between the parties and through its accumulative conduct committed a repudiatory breach of her contract of employment, thus constructively dismissed her.

The burden of proof is on the Complainant, in a constructive dismissal case.

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. 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.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in light of the employee’s precarious physical and psychological health.

In this case, re-instatement and re-engagement were not sought. Compensation was the remedy sought, and, if an Adjudication Officer is satisfied that a Complainant has been unfairly dismissed, he/she is required to award a sum which is ‘just and equitable’ in all the circumstances, which has regard to the conduct of the employer, mitigation undertaken by the Complainant, and economic loss including future loss, not exceeding two year’s remuneration, which is a monetary and not a temporal sum.

What occurred, in the case before me for determination, is deeply unfortunate and is clearly disappointing for the employee. The question which falls to the Adjudication Officer to determine is whether it rises to the level of constructive dismissal, i.e. whether through its accumulative conduct, the employer committed a repudiatory breach of the employee’s contract, or, alternatively, whether the employer’s conduct was so egregious/objectionable that an employee could not be required to tolerate it any further. I find that it does not. Having carefully considered the evidence and submissions, and applying the relevant law, I find that the Complainant was not dismissed, constructively or otherwise.

The test as to whether someone was constructively dismissed is an objective one and I find that the Complainant has failed to meet the threshold required with respect to constructive dismissal.

The circumstances of the case are unusual and unfortunate. The Complainant and Respondent both spoke very highly of each other and had an excellent working relationship.

It is clear that the Complainant was a highly regarded employee and the Respondent company wished to retain her subsequent to her maternity leave, and to that end, it was willing to facilitate her in a move from her previous weekday shift to the weekend shift, in circumstances where both she and her partner were employees of the Respondent company (and he continues to be an employee of the Respondent company) and they wished to alternate their shifts so that they could split childcare between them.

That was a reasonable and decent and facilitative approach by the Respondent employer, in a bid to retain a valued female employee who had just had a baby.

Unfortunately, that offer was made – and I find that the offer was made; and that the Complainant altered her position to her detriment on foot of receiving the offer and a start date for the new shift, by cancelling her social welfare benefit - without regard to the fact that it may cause industrial relations issues with other employees. The site is unionised. The weekend shift is a coveted shift with very little employee turnover. What emerged, on foot of representations made to management both by an individual staff member and by SIPTU which is one of the two recognised unions on site was that there were other employees who would have been interested in a move to the weekend shift (and who had more seniority than the Complainant), had it been advertised; and, that in the event that a role on the weekend shift became available, the union was of the view that it should be advertised and employees should have the opportunity to apply. In the circumstances, the Respondent company then did an assessment of its manpower needs on the weekend shift and determined that there was actually no new additional role available on it. The results of that assessment simply underscore the fact that the Respondent was seeking to facilitate the Complainant, as it wished to retain her.

The Complainant was then told that the move to the weekend shift was not available to her, but that her previous weekday shift was available. The Respondent company has no part-times roles but did propose various combinations of work and parental leave to the Complainant as possible solutions as well as various shift patterns which would mean she was working opposite her partner which would facilitate them to mind their child. The Complainant actively engaged with the Respondent in a bid to find a solution.

The threshold to establish constructive dismissal is a high one, as per the applicable legislation and case law in this area, and I find that the facts of the Complainant’s case do not meet that bar.

Generally, there is a requirement on the employee to utilise the grievance procedure, prior to resignation, which the Complainant did not do in this case. It should be said, however, that that requirement is a matter of fairness and, in this instance, it is clear that the employer was on notice of the issue in question, had an opportunity to address it and actively engaged with the employee on it, making significant efforts to address it in all kinds of ways. The only thing it did not suggest was that it would honour the offer made to the employee to move her to the weekend shift. The new shift pattern was subject to a review after three months, in any case. Furthermore, an employee can be moved back from the weekend shift to a weekday shift with two weeks’ notice.

I further note that the employee was paid two weeks’ notice (upon her request), as per the terms of the draft letter setting out the parameters of the move to the weekend shift. I accept Mr. Shane O’Sullivan’s evidence that the Respondent specifically did not take an adversarial approach with the Complainant (or other employees) and that it wanted a good social climate in the workplace, and its approach was informed by that.

I find for the Respondent.

I find that this complaint of constructive dismissal is not well founded.

Constructive Dismissal; Proposed shift change; Rescinded; Return from protective (maternity) leave;