Complainant

Respondent

Parties

Ruth  Murray

Campbells Catering Ltd  t/a Aramark

Representatives

  Self-represented

 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-00046524-002

04/10/2021

The Complainant alleges that she was constructively dismissed from her employment on 9 September 2021. The Respondent contends that the Complainant resigned on this date.

Evidence of the Complainant (on oath)

The Complainant outlined that she was interviewed for and successful in being appointed as a deli manager in 2020. However, Ms Cruise, General Manager, placed her on the team leader rate of pay of €12 per hour. In August 2021 the Complainant asked Ms Cruise, her manager, for a pay increase as she was performing the role of deli manager but on the hourly rate of pay pertaining to the role of supervisor/team leader. The Complainant was advised that no member of staff was getting a pay rise given the impact of Covid-19. The Complainant stated that she accepted this explanation.

Sometime later the Complainant learned that a work colleague was promoted and received a pay increase. The Complainant outlined that she believed this was unfair and that Ms Cruise was treating her differently compared to her colleague. The Complainant contended that while she was a member of the management team, she was not being treated like a member of management. The Complainant submitted that she asked this work colleague whether she was earning more than €12 per hour, and that is how she learned that her rate of pay was the same as a team leader, and not a manager.

The Complainant raised this issue with Ms Cruise who responded that the complainant could leave if she wanted to, and that Ms Cruise would not stop her. The complainant outlined that she was upset and deflated by this response as she had worked hard for the Respondent and was never absent. That same day the Complainant phoned Mr Cribben, Operations Director, and told him of her conversation with Ms Cruise, to which Mr Cribben responded, “you are going nowhere, I’ll sort this out”. The Complainant outlined that she liked Mr Cribben and got on well with him. The Complainant heard from a work colleague that Mr Cribben sent an email to Ms Cruise telling her to speak with the Complainant and to sort it out. The Complainant outlined that Ms Cruise did not speak with her as instructed by Mr Cribben. The Complainant requested a copy of Mr Cribben’s email from Ms Cruise but did not receive a response.

The Complainant stated that the reason she left the employment of the Respondent was because of Ms Cruise’s response. Two weeks after this conversation with Ms Cruise, the Complainant started to look for another job. The Complainant stated that contrary to the Respondent’s written submission, she was not asked by any member of management as to what could be done to encourage her to remain in the Respondent’s employment.

On Tuesday 7 September 2021, while the Complainant was working out her notice, Mr Cribben visited the premises. Mr Cribben called the Complainant over to speak with him. He stated that he had heard she was leaving. Mr Cribben advised the Complainant that he would tell Ms Cruise to call the Complainant in for a discussion before she left the Respondent’s employment. The Complainant did not hear anything further from Ms Cruise before her last day of work on Thursday 9 September 2021.

The Complainant was due to commence employment Monday 13 September 2021 with Centra in Naas. The Complainant did not start in this role due to a misunderstanding as the location of the store and the commute involved. In October 2021 the Complainant commenced employment with Applegreen in Newbridge on €10.20 per hour on a part-time basis before moving to Bradbury’s Newbridge to another part-time role. The Complainant then commenced employment with Sodexo in May 2022 initially on an hourly rate of €11.55. This rate was increased to €12.90 in February 2022.

The Complainant outlined that she was not aware of the Grievance Procedure. The Complainant  stated that she spoke to the Citizen Information Office who told her she was entitled to an exit interview.

In cross-examination the Complainant responded that she started to look for another job two weeks after she asked Ms Cruise for a pay rise. The Complainant submitted that she was hearing for the first time via the Respondent’s written submission that she was not regarded as a ‘manager’. She was always referred to as the ‘deli manager’; that was the position she interviewed for; was successful in attaining; and it was announced on the notice board. It was a work colleague that told the Complainant that Mr Cribben had emailed Ms Cruise instructing Ms Cruise to give the Complainant a pay rise. The Complainant added that she thought the matter would be resolved then given Mr Cribben’s seniority. It was put to the Complainant that at no time had Mr Cribben emailed Ms Cruise to direct that the Complainant be given a pay rise. The Complainant accepted that an email had possibly not been sent and that, the reason she did not receive a copy of said email, was because it simply did not exist. It was put to the Complainant that she had a good relationship with Mr Cribben and yet she had not told Mr Cribben that she was very unhappy. The Complainant accepted that she received a leaving gift from Ms Cruise but added that no exit interview was completed. The Complainant submitted that Mr Cribben also told her that Ms Cruise confirmed to Ms Cribben that she was had no intention of speaking to the Complainant before her notice expired.

The Complainant confirmed to the hearing that she spoke to Ms Cruise on one occasion only in relation to a pay rise. The Complainant also confirmed to the hearing that she had secured the job with Centra in Naas a week before she handed in her notice.

Closing Remarks

In closing the Complainant said she worked hard for the Respondent and never missed a day of work in 13 years. She was promoted to deli-manager and was introduced and referred to as deli manager. The Complainant felt that she was treated harshly in that when she requested a pay rise, she was refused same and told she could go if that is what she wanted to do.

Evidence of Mr Cribben (on oath)

Mr Cribben is the Operations Director for the Respondent business and oversees all the Respondent premises nationwide. Ms Cruise is the General Manager (GM) of the Newbridge premises where the Complainant was employed. Mr Cribben outlined that he does not instruct a GM to give a pay rise. That is not how the process works. Rather, where a GM requests a pay increase for a member of the team, Mr Cribben will receive a notification via the HR Portal from Human Resources. He is then asked to comment on the proposed increase. A request for a pay rise can only be submitted via the Portal and he would not send an instruction to award a pay increase by email.

Mr Cribben outlined that where there is a staff issue or concern his approach is to encourage the matter to be resolved locally, and to engage in conversation. Mr Cribben explained that it is not his role to tell a GM on how to run the premise they manage, or to interfere in their decision making. The GM has responsibility for the running of and making decisions affecting the premises they manage. Mr Cribben outlined that the Complainant spoke to him over the phone and in person regarding the issue of her hourly rate of pay. He then asked Ms Cruise to discuss this directly with the Complainant. Mr Cribben stated that a colleague of the Complainant asked him if he was going to sort out the Complainant’s hourly rate of pay. Mr Cribben stated that he did not discuss the issue with this member of staff. Mr Cribben outlined that it is for the GM of a premises to decide if a member of their team should receive a pay increase. Each premises has a monthly budget for payroll and this is managed by the GM.

Mr Cribben outlined that when he learned that the Complainant had resigned, he asked Ms Cruise to speak with the Complainant. His instruction was that they should engage in a conversation regarding the Complainant’s issue with her hourly rate of pay to see if the matter could be resolved. Mr Cribben stated that at no time did Ms Cruise say to him that she would not give the Complainant a pay rise. Increases in pay are normally given annually or on promotion. Mr Cribben outlined that the hourly rate for retail staff and deli staff differs because of the difference in the role and the tasks performed.

In cross-examination, the Complainant asked why Mr Cribben was submitting now that she held the position of team lead when she signed company documents as deli manager and was congratulated on her promotion to deli manager. In reply, Mr Cribben stated that across all premises the organisational structure is team lead, reporting to the GM, and that there is no position of deli manager at any of its premises and that the Complainant was not appointed as a deli manager. The Complainant put it to Mr Cribben that he had said to her when they spoke, that he had told Ms Cruise to speak with the Complainant and that she said “no” to that request. Mr Cribben replied that he told Ms Cruise to speak with the Complainant, but at no time did Ms Cruise refuse to do so. The Complainant put it to Mr Cribben that she worked on the 7th, 8th and 9th September 2021 but Ms Cruise did not ask to speak to her and that Ms Cruise allowed the resignation take effect.  

Evidence of Ms Zoe Cruise (on oath)

Ms Cruise became GM in 2020. She worked with the Complainant for many years and considered that they got on very well. The Complainant was employed in the capacity of team lead of the deli. There was no position of deli manager. The structure was GM, assistant manager, and team leader.

In June 2021 the Complainant requested a pay rise. The business was just emerging from Covid -19 and this would be an out of cycle increase. She explained to the Complainant that a full year had not yet elapsed since the last pay review. The Complainant did not speak to her again about a pay rise before she resigned. Ms Cruise submitted that she was on annual leave when she learned that the Complainant had given her notice of resignation. The week previous the Complainant had given the assistant manager her notice of resignation. The assistant manager asked the Complainant to wait until the GM returned from leave. The Complainant said “no” to this suggestion. She wanted to give her notice then as she had secured a new job and was starting this job the following week.

Ms Cruise submitted that she spoke to the Complainant on her return from annual leave. The Complainant said she was sad to be leaving her job but that it was something she had to do. The Complainant did not say she was leaving because she had not received a pay increase or that the matter remained unresolved. The Complainant contacted Ms Cruise again after her resignation had taken effect to query holiday pay. During this call, the Complainant asked about an exit interview. Ms Cruise told the Complainant that it was not the practice of the company to do exit interviews but that she would do one if the Complainant wanted one. The Complainant said there was no point now as she had already left. Ms Cruise confirmed that there were no ad hoc pay rises for any member of staff that year, other than an increase given to one person on her promotion to a team lead position. She also confirmed that there are no fixed hourly rates of pay for managers and team leads.

In cross-examination, it was put to  Ms Cruise that the Complainant rang about an exit interview the day after she left her employment. Ms Cruise said she thought it was the following Monday. Ms Cruise denied that she promoted the Complainant to the position of deli manager. She was appointed as team leader of the deli. There is no position of deli manager. Ms Cruise said she was never directed by Mr Cribben to give the Complainant a pay rise, and that the Complainant never said to her that if she did not receive a pay rise, she would leave. Ms Cruise thought the Complainant had decided to work elsewhere, that this is something she wanted to do and that she respected that decision. No one directed her to resolve an issue with the Complainant and further she was not aware that there was an issue to resolve. She thought the Complainant had left on good terms and she bought her a gift. Ms Cruise submitted that the Complainant and her could have resolved the issue for the Complainant had she come to her to discuss her pay before resigning.

Closing Remarks

In closing, the representative for the Respondent stated that this complaint does not meet the threshold for constructive dismissal. It is hard to understand how the Complainant thought she was a manager and yet never looked for a manager’s rate of pay or an increase for ten months. Further, she made no claim for back pay. The reality is that the Complainant was a team lead and paid accordingly. Mr Cribben did not send an email to Ms Cruise directing her to give the Complainant an increase. It was not the practice of the Respondent to do exit interviews. The Respondent has a comprehensive Grievance Procedure in place. The Respondent written submission set out the test for constructive dismissal and directed the hearing to McCormack v Dunnes Stores UD 1421/2008; Conway v Ulster Bank Limited UD 474/1981; and Travers v MBNA Ireland Limited UD720/2006.

Law

The burden of proof is on the Complainant to establish that her resignation was not voluntary. There are two tests contained within the definition of constructive dismissal at s 1(b) of the Unfair Dismissals Acts 1977 – 2021 (“the Acts”). Either or both tests may be invoked by an employee. Either test may be applied by the Workplace Relations Commission.

Section 1 of the Acts defines dismissal, which includes at (b):

“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 . . . .”

Where the employee terminates the contract, there is only a dismissal within the meaning of s (1)(b) if, “because of the conduct of the employer”, the employee was “entitled” to, or it was “reasonable” to terminate the contract of employment. Accordingly, the question of the dismissal must be considered under ‘entitlement’ and/or ‘reasonableness’.

The contract test is used to assess entitlement to terminate the contract and was summarised in a UK Court of Appeal decision by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.C.R. 121 (cited in Berber v Dunnes Stores [2009] IESC 10) 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 further performance.”

An employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract.

A general term is implied into every contract of employment that the employer will not impair the ‘trust and confidence’ of the employee. In Malik v Bank of Credit and Commerce International [1997] 3 All ER 1 (cited in Berber v Dunnes Stores [2009] IESC 10), Lord Stein stated:

“The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust or confidence between employer and employee”.

In Malik the threshold was held to be high: it must “destroy or seriously damage” the trust between the parties. However, it is not essential that the employer be aware of the effect of the conduct. Nor that they intended such an effect. Similarly in Joyce v Brothers of Charity Services [2009] ELR 328, the Employment Appeals Tribunal (EAT) held that the conduct “. . . cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”.

In Berber v Dunnes Stores Ltd [2009] IESC 10, it was held by the Supreme Court that in determining if there has been a breach in the implied contractual term of mutual trust and confidence, the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

The reasonableness 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, she is justified in leaving . . . .” (Cedarglade Limited v Tina Hilban, UDD 1843). Thus it may be reasonable for an employee to terminate the contract because of the conduct of the employer even if the employer had adhered to the contractual terms.

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013).

It is well settled law that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning. In O’Gorman v Glen Tyre Company Ltd (UD2314/2010), the EAT noted: “it is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”. At a minimum, the employee will be expected to utilise the company grievance procedure. In Conway v Ulster Bank Ltd (UD 474/1981), the EAT noted that “it is not for the Tribunal to say whether this procedure would have produced a decision more favourable . . . but it is possible”.

It is also well settled law that an employee may be justified in resigning without utilising the grievance procedure in some circumstances. In Mr O v An Employer (no. 2) [2005] 16 ELR 132, the court accepted:

“. . . 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. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”.  

Findings

I find the Complainant has not discharged the burden of proof on her to establish that her resignation was not voluntary for the reasons set out below.

It was common case that there is no fixed rate for any position within the Respondent business. The Complainant did not claim that she had a contractual right to a certain rate per hour whether as a manager or a team lead.

It was common case that the Complainant approached her manager, Ms Cruise, in 2021 and requested a pay rise. It was common case that Ms Cruise did not accede to the request for a pay rise at that time because a pay rise would be out of cycle and the business was recovering from the effects of Covid-19. The Complainant accepted this at the time.

Subsequently the Complainant learned that a colleague had been promoted and had received a pay rise. The Complainant submitted that this was unfair as she had been refused an out of cycle increase and that Ms Cruise was treating her differently compared to her colleague. I do not accept this. It was common case that this pay rise was given on foot of a promotion. The Complainant had also received a pay rise on her promotion several months previously.

It was common case that the Complainant raised the issue of a pay rise with Ms Cruise on one occasion only before she resigned. While she did raise the issue of her pay with Mr Cribben, I accept his evidence that it is not for him to direct Ms Cruise to give a pay rise, nor did he do so by email.

The Complainant felt that she was treated very harshly in that when she requested a pay rise, she was refused same and told she could go if that is what she wanted to do. It was confirmed later in the hearing by the Complainant, that it was on Ms Cruise’s return from annual leave, and during the Complainant’s notice period, that Ms Cruise said to the Complainant that she was free to leave if that is what she wanted. I accept that the issue of the Complainant’s rate of pay did not arise in this conversation. It was common case that the Complainant did not utilise the Grievance Procedure before she resigned.

For the reasons set out above, I do not find on the evidence that the Respondent engaged in conduct which resulted in a fundamental breach of the contract, or which indicated that the Respondent no longer intended to be bound by the terms of the contract. Nor do I find the Respondent conducted its affairs in relation to the Complainant so unreasonably that the Complainant was justified in resigning. I further find that the Complainant acted unreasonably in not engaging in the Respondent’s grievance process before resigning.

I find that the Complainant resigned and therefore the Complainant’s complaint under the Unfair Dismissals Acts 1977-2015 is not well-founded.

I decide this complaint under the Unfair Dismissals Acts, 1977 – 2015 is not well-founded.

Constructive dismissal.