ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00045245

Parties:

Complaints:

Date of Adjudication Hearing:  30/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Act 1977 and Section 21 of the Equal Status Act 2000,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant contends that she was constructively dismissed having had disputes with fellow employees and managers.

Summary of Complainant’s Case:

The Complainant submitted 44 pages of details of her experiences working in the Respondent’s retail store.   She recounted incidents with fellow employees and the Store Manager and the Floor Manager.  She stated that her contracted hours were changed and that she had many disputes with others in the employment and that she was not supported.  She did not take a formal complaint as she believed she did not have to do so, as the Employer should have protected her.  She alleges that a Lecturer from her college called in to the Store on one occasion.  She questions why that individual was there, asked her was she in trouble and she surmised that the person was sent in to check on her as a form of reference. 

Summary of Respondent’s Case:

By complaint form dated 5 April 2023 (the “Complaint Form”) the Complainant has alleged she was constructively dismissed. The Complainant commenced her employment on 9 October 2022 and she resigned from her employment on 30 January 2023. She worked for just over 3 months. She asked the Respondent to issue a letter to state that the Respondent had terminated her employment so that she could apply for social welfare. The Respondent confirmed that they could not do so as they had not terminated her employment and that there was a contract available for her.

In the Complaint Form, the Complainant asserts she is “exercising my right under the Protected Disclosure Act”. The Respondent never received any communication from the Complainant that would amount to a protected disclosure. The Complainant has since confirmed by e-mail that her case would not feature a protected disclosure.

Without prejudice to the preliminary objection, the Respondent refutes the Complainant’s allegations, denies the Complainant was constructively dismissed and denies that there was any infringement of the Unfair Dismissals Acts in relation to the Complainant’s employment.

The Complainant has brought her claim for constructive dismissal under the Unfair Dismissals Acts. Constructive dismissal is defined under the Unfair Dismissals Acts as:

“the termination by the employee of their contract of employment with their 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”.

In a claim of constructive dismissal, the burden of proof is on the Complainant to establish that either (a) she was entitled to terminate her employment due to the breach of a fundamental term of the contract of employment or (b) the actions of her employer were so unreasonable that it was reasonable for her to terminate her employment.

The Complainant alleges “Before Christmas we had 2 big cases of disputes, which were addressed to managers. There was no follow up from these 2 accidents known or spoken to me, but I have a feeling there was unknown investigation going on about these cases.” The Respondent’s position is that there is no truth to this statement.  Next is a leading retail company which prides itself on its people and supporting an environment where employees are supported and respected, treated fairly and taken care of and listened to. Next has comprehensive policies and procedures in relation to grievances and dignity at work. The Complainant did not engage with the grievance policy or dignity at work policies.

For the avoidance of doubt, there was no investigation being carried out and the store manager and deputy store manager have no idea what it being alleged by the Complainant in her complaint form. No matters of dispute were addressed from staff to managers. There was a personal matter of dispute related to the Complainant. She did not clock in for a period of time and then queried why she had not been paid. This was resolved by the Respondent and the Complainant was paid for her hours worked.

In the Complaint Form, the Complainant alleges that someone drew on her cream jacket with a pink marker. This was never brought to the attention of the Respondent, nor was any formal grievance ever raised through the Respondent’s grievance policy. The management in the store had no knowledge of this before reading it on the complaint form.

The Complainant has also pointed to an incident in December 2022 which involved one her  “lecturers” coming into the store and asking her if she was in trouble. Once again, the Respondent has had no prior knowledge of this incident occurring and has only learned of it by reading the Complaint Form. The Respondent does not ask for referees and does not check referees or previous jobs prior to employment. Therefore the Respondent had no knowledge of any lecturer related to the Complainant. The store management has no knowledge as to what this comment could relate to.

Conclusion

The Respondent categorically denies the Complainant was constructively dismissed.  As a preliminary objection, the Complainant does not have the requisite service under the Unfair Dismissals Act 1977.

Notwithstanding the preliminary objection, the Respondent submits that the Complainant has not met the very high threshold required to establish their claim that they were constructively dismissed.

It has been well established that an employee must act reasonably and seek to resolve the matter internally before resorting to a claim for constructive dismissal. During her employment, the Complainant never raised a grievance or engaged with the grievance or dignity at work policies.

The Respondent respectfully asks the Adjudication Officer to dismiss the claims made by the Complainant.

Findings and Conclusions:

CA-00055935-001            Unfair Dismissals Act 1977

The Complainant initially described on her complaint form that she was unfairly dismissed due to having made a protected disclosure.  In an exchange of emails between the Complainant and the Respondent’s solicitor on 24/7/2023 in which she was asked to outline her protected disclosure she replied on 24 July 2023 13:37:

“I am no (sic) going with a protected disclosure.  It will not be in the case.”

Applicable law

Section 2 of the Act provides:

“2-(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

• (a) An employee (other than a person referred to in section 4 of this Act) who is dismissed who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him..

Section 6 of the Act provides:

“6-(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all of the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one of more of the following:

…

(ba) the employee having made a protected disclosure.

Section 6 (2D) provides that a case falling within (2) (ba) applies to a person who would otherwise be excluded by 2(1)(a).

The Complainant has indicated that she is not proceeding with her complaint that she was unfairly dismissed for having made a protected disclosure.  For completeness, no evidence was presented in support of such a claim.

I find her complaint to be not well founded.

CA-00055935-003            Unfair Dismissals Act 1977

Section 2 of the Act provides:

“2-(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

• (a) An employee (other than a person referred to in section 4 of this Act) who is dismissed who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him..

The Complainant contends in this particular complaint, that she was unfairly dismissed by way of constructive dismissal.  As she had less than one year’s service on the date, I find I have no jurisdiction to hear this complaint and  I find the complaint to be not well founded.

CA-00055935-004            Equal Status Act 2000

The Equal Status Act 2000 confers rights on consumers to equal access to goods and services.  The Act does not apply to employees.  This complaint is misconceived and I find it to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints  in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

 CA-00055935-001           Unfair Dismissals Act 1977

I have decided the complaint is not well founded.

CA-00055935-003            Unfair Dismissals Act 1977

I have decided the complaint is not well founded.

CA-00055935-004            Equal Status Act 2000

I have decided the complaint is not well founded.

Dated:   14-06-2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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