Complainant

Respondent

Anonymised Parties

An Employee

A Supermarket

Representatives

Killian O'Reilly of Fieldfisher

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-00055680-001

15/03/2023

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

CA-00055680-002

15/03/2023

The Complainant worked for the Respondent supermarket from 18th of July 2019 until her resignation on the 31st of July 2022.

She has submitted a complaint under the Payment of Wages Act alleging that there had been an unlawful deduction of her final month’s salary. She has also submitted a complaint under the Unfair Dismissals Act alleging she had been constructively dismissed.

The Complainant raised a personal security issue entirely unrelated to her employment or former employer. In the circumstances the Respondent had no objection to the decision being anonymised.

The Complainant attended the hearing and gave evidence under oath.  

The Respondent’s solicitor made detailed written submissions and oral arguments.

The Respondent’s HR services supervisor gave evidence under oath.  The store manager who was the Complainant’s manager (“Manager”) also gave evidence under oath.

Time Limits

The Respondent had submitted that the Complainant’s WRC complaints were out of time.

The Complainant submitted that she had in fact tried to submit complaints within the cognisable time period, that is 6 months from the date of her leaving the Respondent’s employment. The Complainant had difficulties with the WRC complaint form and then emailed the WRC. The WRC responded promptly and attached a document with a link to the manual WRC complaint form. However unfortunately the link on that document was broken. The WRC then posted a copy of the complaint form. The Complainant furnished copies of these emails, however they were all from December 2022 and January 2023.

As outlined by the Labour Court in Salesforce.com v Alli Leech EDA1615, if a Complainant is seeking to demonstrate reasonable cause for delay they must establish that the factors they say are preventing them from submitting a complaint were present up to the time that the complaint form was submitted. 

In this case the Complainant has failed to meet this test. The problems she identified with the WRC complaint form were live about 6 weeks before she actually submitted the manual form. As such I cannot be satisfied these matters actually prevented her from submitting her complaints up until the time she did submit the manual complaint form.

While I would normally conclude my decision at this point I believe it might be useful for me to express my position on the substantive issues so that it might put them to bed for the parties. 

Payment of Wages ActCA-00055680-002

The Respondent has provided a comprehensive explanation for the deductions outlined in the Complainant’s last payslip. They pay their staff at the end of the month. Their staff have contracts based on core hours. As is common in the retail sector those hours are fulfilled on a flexible basis and employees often work above or below their core hours on any given month.

The actual hours owed to each member of staff are not immediately available when payroll is run at that month end. As such pay is delayed by a month. For instance, an employee’s January hours are paid at the end of February.  To avoid new starters waiting two months before they are paid those employees are paid their core (“contracted”) hours for the month they start, whether they work them or not. Each month there is then a reconciliation process where the hours worked the previous month are recorded, the previous months core hours (which have already been paid) are deducted and that month’s core hours are added in. On the final payslip, a full month after the employee’s exit, in this case on the 31st of August, there is a deduction of the previous month’s core hours payment from the hours actually worked that previous month but no core hours are added back in for that month because the employee does not work for the Respondent anymore. It is a reconciliation of the first month’s pay in the final month’s payslip.

The Complainant questioned this and believed it to be an unlawful deduction. It was not.

Unfair Dismissal CA-00055680-001

The Complainant threatened to resign in May if she did not get a promotion. Her Manager indicated that she might get a promotion so she stayed.

A promotional process was in train throughout July but there was an issue with the interviews and they needed to be reorganised and this delayed matters. The Complainant sought to raise her lack of promotion with her Manager’s manager and when they failed to offer her one she resigned.

Around this time the Complainant was in contact with her Manager regarding her holidays. She was requesting 4 weeks holidays for a wedding abroad. There is a dispute about when she told the Manager, that is in May or in February/March. In either case the Complainant was not told that she could not take the holidays. She was told that she would not be paid for all of them. The leave year starts in March and the Complainant had only accrued about 8 days at this point.

The Complainant was asked to work 6 days and refused. The Manager’s evidence was clear that this was a one off occasion. The Complainant’s evidence was less clear whether this was a one off or a proposed permanent state of affairs. Either way the Complainant was of the view that the refusal counted against her getting the promotion.

Finally, the Complainant’s evidence was that her relationships with her Manager became frayed through this point and she believes that if you fall out with the Manager then there is no prospect of a happy working environment.

The Respondent disputes much of this. However, even if I was to disregard the Respondent’s evidence the Complainant would not succeed in a constructive dismissal claim.

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

This is outlined in section 1 of the act which defines dismissal as to include:

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,

It is important to note that the above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer.

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal”

The Complainant’s position is that she did not get a promotion. In normal circumstances, an employee not being promoted into a higher role cannot be considered such unreasonable conduct by the employer, that the employee cannot be expected to carry on working their in current role.

The Complainant asked and got 4 weeks leave. Her Manager had to go get approval for this from his manager and asked her for information to assist him making the case. She had not accrued her full annual leave entitlement at that point so would have had to take some of the leave unpaid. None of these actions are particularly unreasonable.

Her relationship with her Manager may have become strained. But this appears to have only happened over a matter of weeks and there is no evidence to suggest that it was so bad that she had to leave, particularly without having first have exhausted the internal grievance process.

The Complainant has not established that she was constructively dismissed.

CA-00055680-001

The complaint in not well founded.

CA-00055680-002

The complaint is not well founded.