Complainant

Respondent

Parties

Leeane  O'Donnell

Clemac Regional Homecare T/A Bluebird Care Limerick

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the  European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006

CA-00052539-001

01/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00052539-002

01/09/2022

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

CA-00052539-003

01/09/2022

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

CA-00052539-004

01/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00052539-009

01/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00052539-010

01/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052539-011

01/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00052539-012

01/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00052539-013

01/09/2022

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

CA-00052539-014

01/09/2022

The Complainant was initially employed as a Healthcare Assistant by the Respondent from September 2020 prior to her move to the position of Team Leader – Hope Support in November 2021. She worked 35.5 hours per week in the new role and was paid €14.70 per hour.

She stated that she was left with no alternative but to give notice of her intention to terminate her employment in June 2022 because of the unilateral changes made by her employer to her terms and conditions of employment. She also stated that she did not receive a written statement of her terms and conditions of employment.

The Complainant stated that she began her employment with the Respondent as a Health Care Assistant in September 2020. She stated that she subsequently gave notification of her intention to leave her employment in November 2021 when she obtained a role elsewhere. When she realised that this role was not what she had originally envisaged, she informed the Respondent in November and subsequently began a new role, namely that of Home Support – Team Leader. She stated that she was paid €14.70 per hour, and received €20 for every bowel call as well as €16.80 per hour while she was on call. She also added that she had the use of a company vehicle.

After a few months in the new role, the company vehicle was taken from her in April 2022, and the bowel call work was given to other employees that she had trained in. While she accepted that she did not do on call at weekends from April onwards she stated that she needed the car for the calls that she did first thing on Monday morning. She sought to discuss this along with other issues she had with the terms of her new role with Shane Gibbons on a number of occasions, both informally and also via email but asserted that these were not addressed.

As a result, she was left with no alternative but to issue notice of her intention to terminate her employment on 24 June 2022.

Mr Shane Gibbons gave evidence on behalf of the Respondent. He stated that when the Complainant gave notification of her intention to resign in late 2021, he found someone else for her previous role. When the Complainant subsequently rescinded her resignation, he created a new role for her. Unlike her previous role, this new position was totally client focused and covered on call at weekends.  A pool car was made available to her because she was on call. As she would not subsequently cover the on-call period after April, the pool car was removed from her.

While he accepted that they had some conversations about the removal of the pool car, Mr Gibbons stated that he offered her another vehicle and denied in evidence that the Complainant had ever sent him an email with her concerns.

CA-00052539-003:

The Law

The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1) of the TE(I)A also obligates an employer to provide employees with a statement in writing concerning other aspects of an employee’s terms and conditions of employment within two months of commencing employment. This provision was recently amended to indicate one month.

Findings:

The Complainant stated that she did not receive an agreed statement in writing of her general terms of employment within one month of commencing her new role.

The Respondent stated in evidence that given her role in the business, the Complainant was responsible for creating her own written statement of her terms of employment. Even if I accept that this was the case, it was the responsibility of the Respondent under the legislation to ensure that she did this. As the Respondent failed to do so, I find that this complaint is well founded.

CA-00052539-004:

The Law

Section 1 of the Act defines what is commonly termed ‘constructive dismissal’ as follows: -

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

Findings

As dismissal as a fact is in dispute, it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal within the meaning of the Act.

The case law envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332held that

“an employer must be “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 further performance”.

A line of authorities has since established this decision as defining the “contract test”.

Secondly, an additional ‘reasonableness’ test may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, and, if so, he/she is justified in leaving. It is clear from the case law, that in addition to asserting that an employer acted unreasonably, an employee must also conduct themselves reasonably prior to resigning if they are to succeed in a case for constructive dismissal. Specifically, in the case of Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331 it was held as follows:

“An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

This is also in line with the decision of the Employment Appeals Tribunal opened to me by the Respondent 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 unreasonableas to make the continuation of employment with the particular employer intolerable”

In this case, the Complainant contends, including in evidence, that her dismissal arose from the fact that the Respondent unilaterally changed her terms and conditions so fundamentally that she was left with no alternative but to terminate her own employment. Specifically, the Complainant asserted that the Respondent removed the company vehicle from her, changed her work station, refused to provide her with the materials she needed to do her job and allocated of the bowel call work she had done to other employees. She stated that she raised these concerns internally and sent Mr Gibbons an email outlining her unhappiness with the unilateral change in terms and conditions. She further stated that as she had not been issued with a contract of employment, she was unaware of the grievance procedure.

On the other hand, I noted that in an email from Mr Gibbons to the Complainant on 26 November 2021, he clearly stated that the company vehicle did not form part of her terms and conditions and that it was a pool car she was being allowed to use at the Respondent’s discretion. In addition, Mr Gibbons, in evidence, denied ever having received an email from the Complainant outlining her concerns with the other alleged change in her terms and conditions, namely the change in her work station, the refusal to provide her with the materials she needed to do her job and the allocation of the bowel call work she had done to other employees.

Given the clear conflict in evidence on this point, I prefer the Respondent's evidence, especially since the Complainant did not provide proof that she sent the crucial email expressing her dissatisfaction with the alleged unilateral change in terms and conditions, despite having provided copies of other emails that she had sent to Mr Gibbons in her pre-hearing submissions.

Although she did not receive a copy of the Respondent’s grievance procedure, this should not have prevented her from formally raising the issue internally, and I find that her failure to do so before resigning was unreasonable. This perspective is supported by the Adjudication Officer in ADJ-00006026, who stated, “The fact of not receiving a grievance procedure does not automatically mean that the employee does not have to raise their issues internally.”

Moreover, while it was accepted by the Respondent that the Complainant’s pool car was removed from her in April 2022, because she was no longer going to be working weekends, Mr Gibbons’s evidence that he had offered her an alternative vehicle that would be available was not challenged by the Complainant in cross-examination. In the absence of any evidence from the Complainant to suggest otherwise, I find that this offer of an alternative vehicle, which she could have used to attend work, was reasonable and her refusal to accept it was unreasonable.

Considering all of the foregoing points, I find that Complainant acted unreasonably in deciding to terminate her employment and that her resignation did not therefore amount to ‘constructive dismissal’ constituting unfair dismissal.

CA-00052539-001 and CA-00052539-002:

These complaints were withdrawn

CA-00052539-003:

I find that the complaint is well founded for the reasons set out above.

 In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment in respect of her new role must be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks remuneration, namely € 2,087.40 (35.5* €14.70 * 4 weeks).

CA-00052539-004:

I find that the Complainant was not constructively dismissed for the reasons set out above.

CA-00052539-009 - CA-00052539-014:

These complaints were withdrawn