Complainant

Respondent

Parties

Jackie  Hickey

Hellermanntyton Limited

Representatives

 Ó Scanaill & Co. Solicitors

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-00054242-001

21/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054242-002

21/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054242-003

21/12/2022

The complaints were submitted to the Workplace Relations Commission (WRC) on 21st December 2022 and relate to alleged constructive unfair dismissal, alleged discrimination on the gender ground and in relation to conditions of employment and alleged breaches of the Terms of Employment (Information) Act, 1994 in respect of contractual changes that occurred during the complainant’s employment.

The complainant commenced a full-time position with the respondent on 11th January 2016 working five days per week. The role changed to a part time role with effect from 7th April 2022 and the complainant resigned with effect from 5th September 2022.

The complainant addressed each complaint by giving sworn evidence at the adjudication hearing.

CA-00054242-001 – Unfair Dismissal Act complaint.

The complainant stated that she worked full time as an area sales manager since 2016 and by 2018 it was accepted by the Managing Director that the complainant was covering the entire country by herself and, given the increased level of sales, it was agreed that a second area sales manager was required. The complainant stated that by 2020 there was no second area manager hired and she continued to work “morning, noon and night” throughout the covid pandemic while working from home. In 2021, the complainant stated that she continued to work full time and was travelling approximately 1000km per week. In 2021, the complainant stated that sales were continuing to grow yet there was still no new sales manager hired and in April 2022 the complainant sought part time work so she could also work part time as a veterinary nurse. Despite reducing her working hours by two days per week and having her salary reduced on a pro rata basis, the complainant stated that she was still expected to maintain the same level of work that she had done before, and it was suggested that she take her laptop to her other part time job to check emails.

The complainant stated that she resigned in September 2022 because she could not manage the level of expectation from the respondent to continue the level of work that she had previously done. The complainant stated that if the second sales manager had been employed in April 2022, everything would have been fine but by September she felt she had no option but to resign from her employment.

CA-00054242-002 – Employment Equality Act complaint

In respect of her complaint regarding discrimination on the gender ground, the complainant stated that she had no support from the employer and that two males were hired to replace her in the business, and they were permitted to purchase cars and put these purchases down to expenses whereas she wasn’t permitted to do that. The complainant further stated that she did not have the support of the office staff unlike her male colleagues.

CA-00054242-003 – Terms of Employment Act complaint.

The complainant stated in her evidence that she did not receive a part time contract when her hours of work changed in April 2022.

CA-00054242-001 – Unfair Dismissal Act complaint.

A principal of the respondent stated in evidence at the adjudication hearing that he had met the complainant in 2002 and they worked together for approximately 5 years. The respondent also stated that the complainant was a very good salesperson and that while she was initially employed on a part time basis in January 2016, she became full time in November 2016 as increased earnings were necessary due to the complainant purchasing a house. In 2018, the respondent stated that the complainant was employed in the UK at the weekends for a number of months and that she took Friday afternoon and Monday mornings off as a result with no loss to salary or annual leave entitlements.

In 2019 the respondent stated that amid increased sales, there were conversations about splitting the country between two sales managers and in April 2020 a second person was identified but did not start due to the covid pandemic. The respondent also stated that in 2020, staff in the UK were furloughed during the pandemic but that the complainant remained working from home and was paid in full except for a few months when she was paid a reduced salary.

The respondent confirmed that the complainant sought part time work in March 2022 to facilitate working two days a week in the veterinary practice.

In respect of the complainant’s resignation, the respondent principal stated that he had never asked the complainant to work outside of hours or to bring her laptop to work at the veterinary practice and that she had never raised issues about being under too much pressure and having to leave her employment as a result. The respondent stated that the complainant was never put under pressure, did not have an individual target and did a very good job and was well looked after as a result. The respondent stated that if issues had been raised, he was there to support the complainant adding that he always had the greatest of respect and admiration for her. The respondent concluded by stating that a career change was the reason for the complainant resigning and that this was known to all in the employment.

The Office Manager who had retired in April 2022 gave sworn evidence at the adjudication hearing. The witness confirmed that she herself had changed from full time work to part time work and had never felt pressurised to do any additional work or to take work home. The witness stated that the team all helped each other, and the complainant was treated the same as everyone else.

The Warehouse and Logistics Manager also gave sworn evidence at the adjudication hearing. The witness stated that it was his understanding that the complainant left the employment to change career to that of a veterinary nurse and not because she was unable to stay due to the pressure of the work. The witness stated that there was no expectation to carry out additional work out of hours.

CA-00054242-002 – Employment Equality Act complaint

The respondent refutes that there is any gender bias within the organisation. The respondent stated that most of the sales staff are males, and the complainant as a female was also employed in a sales role. The respondent stated that the complainant had the same level of support from office staff as her male colleagues and was not discriminated against. In respect of new job applicants, the respondent stated it is an equal opportunities employer.

The Office Manager in her evidence stated that she never perceived any discrimination or gender bias in the organisation and that the culture was that everyone helped each other and there were many men and women on the team, and everyone got on well. The Office Manger also confirmed that in 12 years she never saw the respondent principal displaying a bad attitude or using inappropriate language in the workplace.

The Warehouse and Logistics Manager in his evidence stated that the complainant was treated the same as everyone else in the organisation and that he had never witnessed any inappropriate behaviour or heard the complainant mention of refer to any discrimination or gender bias.

CA-00054242-003 – Terms of Employment Act complaint.

The respondent was of the view that the complainant received an amended contract when she requested part time work in April 2022. The Office Manager in her evidence stated that she had received a part time contract when she changed her pattern of attendance, and it was her understanding that the credit controller also received a part time contract. She also stated that the complainant never mentioned that she didn’t receive one, so it was assumed that she was given written clarification of the changes to her attendance in April 2022.

CA-00054242-001 – Unfair Dismissal Act complaint.

The complaint relates to an alleged constructive unfair dismissal. For this complaint to succeed, the complainant must show that due to the conduct of the employer she had no option than to resign from her employment.

It is not disputed that the complainant did not raise a grievance in relation to the issues that she was unhappy about. The complainant had stated that it was awkward to do so and that she could not go to the HR department in the UK as she had no real relationship with those colleagues.

The Applicable Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 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 employer.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the “Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

 “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

 “whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to exhaust internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

In relation to availing of a grievance procedure, the Labour Court held as follows in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132:

“The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have”.

Having considered this issue, I find that the complainant did not act reasonably in resigning without first affording the respondent the opportunity of addressing the issues of dissatisfaction to her by utilising the internal grievance procedures. I also find it more likely from the submissions and evidence of the parties, that the complainant resigned from her employment as she was changing careers having qualified as a veterinary nurse and not as a result of the respondent’s behaviour towards her.

In all of the circumstances of the complaint, I find that the complainant was not subject to a constructive unfair dismissal.

Mitigation of Loss

The complainant quantified her loss of earnings between September 2022 and June 2023 as €12,653.63. I note that the complainant has continued to work as a veterinary nurse since her resignation in September 2022 and has not provided any information that she has sought full time work in other employments. On that basis, I find that the complainant has not made efforts to seek full time work and has not made efforts to mitigate her losses.

CA-00054242-002 – Employment Equality Act complaint

In respect of the complaint alleging discrimination, the complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn. If the complainant establishes a prima facie case of discrimination, the burden of proof shifts to the respondent.

The Applicable Law

Section 6(1) of the Employment Equality Act, 1998 provides as follows:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Employment Equality Act, 1998 provides as follows:

85A (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 him or her, it is for the respondent to prove the contrary.

In respect of the complaint of discrimination, the complainant alleges that she was treated less favourably than her male colleagues. The basis of the complaint is that the complainant received less administrative support than her male colleagues and that they had a preferential system relating to motoring expenses than she had. On this issue I note the evidence of the respondent witnesses that the complainant was treated the same as everyone else and that the issue of less favourable treatment had never arisen during the complainant’s employment.

In all of the circumstances of this complaint, I find that the complainant has not discharged the burden of proof in relation to her complaint of discrimination on the gender ground and has therefore not established a prima facie case of discrimination.

CA-00054242-003 – Terms of Employment Act complaint.

This complaint relates to an assertion by the complainant that she did not receive written notification of the changes to her terms and conditions of employment when she reduced her working hours to three days per week in April 2022.

The Applicable Law

Section 5 of the Terms of Employment (Information) Act, 1994

5(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute, other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

I note the opposing positions of both parties in relation to this complaint. The complainant stated she did not receive written notification of the changes to her working hours in April 2022 whereas the respondent was of the view that the complainant did receive written notification of the changes as required by the legislation. It was also stated that the complainant was not present when the staff handbook was made available/provided to staff.

In the absence of a signed copy of the contract that came into effect in April 2022, I accept that the complainant did not receive written confirmation of the changes to her terms and conditions of employment in line with the provisions of the legislation.  I find therefore that the respondent has breached the legislation as claimed. However, despite the breach, I find that the complainant has not suffered any material detriment as a result. It was the complainant who sought part time work from April 2022 onwards and was clearly aware of the reduced working hours and changes to her weekly earnings as a result. Having considered the matter, I do not consider it appropriate to award compensation to the complainant in respect of this issue.

CA-00054242-001 – Unfair Dismissal Act complaint.

For the reasons stated above, I find that the complaint is not well founded.

CA-00054242-002 – Employment Equality Act complaint.

As the complainant has not established a prima facie case of discrimination, I find that the complaint is not well founded.

CA-00054242-003 – Terms of Employment Act complaint.

The complaint is well founded. However, I find that compensation is not appropriate and make no award to the complainant.

Constructive unfair dismissal, discrimination, written notification of changes to terms and conditions.