Complainant

Respondent

Parties

Melissa  Murphy

River Poppintree Trade Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00061958-001

04/03/2024

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

CA-00061958-002

04/03/2024

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

CA-00061958-003

04/03/2024

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

CA-00061958-004

04/03/2024

The complainant commenced employment with the respondent in April 2022, as a Deli Counter Assistant. She submits that her employment ended on 1 January 2024. She worked 20 hours per week and was paid €221 gross per hour. A complaint form was received by the WRC on 4 March 2024. 

The complainant provided a written submission.

The complainant submitted that she had never received a Contract of Employment.

The complainant gave evidence on affirmation at the hearing.

Initially, the complainant stated that she had never received a contract of employment. However, having heard the evidence of the Store Manager on this matter (see below) she accepted that she had received a Contract of employment.

Mr Pawan Pokharel, the Store Manager, gave evidence at the hearing on affirmation.

He stated that a contract of employment was sent to the complainant on 12 April 2022 along with a copy of company policies.

The complainant did receive a Contract of Employment as required under the Act.

The complaint is not well founded.

The complainant submitted that she had not received a statement of her core terms of employment in writing.

Having heard the evidence of the Store Manager on this matter (see below) she accepted that she had received a statement of her core terms of employment.

Mr Pokharel stated that a contract of employment was sent to the complainant on 12 April 2022 along with a copy of company policies.

The complainant did receive her core terms of employment as required under the Act.

The complaint is not well founded.

The complainant submitted that she was not notified in writing of a change to her terms of employment.

The complainant stated that her hours of work were changed without her consent at the end of July 2023.

Mr Pokharel stated that a contract of employment was sent to the complainant on 12 April 2022 along with a copy of company policies.

The respondent stated that the changes referred to by the complainant took place at the end of June 2023.

Section 41(6) of the Workplace Relations Act, 2015, states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complaint was received by the WRC on 4 March 2024. Even accepting the complainant’s evidence that the changes to her contract took place in late July 2023, the complaint falls well outside the cognisable period of six months. No reasonable cause for a delay in presenting the complaint was put forward by the complainant, therefore I do not have jurisdiction to on this matter.

I do not have jurisdiction to hear this complaint.

In her written submission the complainant submits that she was rostered to work on the 3 and 4 of January 2024 but she got sick and could barely open her eyes or lift her head. So, she had no choice other than to call in sick. For a return to work she was asked, by the respondent, to provide a doctor’s note but she felt there was no ground for this as she had no contract of employment.  She again looked for a contract to be provide but her request was ignored. Instead, she submits she was frozen out, her employment was terminated. 

The complainant submits that she was still receiving emails about rosters; she has not been removed from the group chat, but she has not been assigned any hours.

In her oral evidence the complainant stated that she worked on 1 January 2024 and was rostered to work on 3 and 4 January but she got sick and rang in to tell her employer. She was asked to provide a sick note for this two-day absence.  She told her employer that she would provide a sick note if she was provided with a contract of employment.  Nothing happened after that other than she continued to receive emails and messages in a group chat from her employer. Crucially however, she was not rostered to work in the communications from her employer.

Mr Pokharel stated that when the complainant was issued with her contract of employment, she was also given copies of the company’s policies, which state that the company may request a medical certificate if an employee is out sick for three days.

Mr Pokharel stated in evidence that there had been an issue with the complainant during the summer of 2023 and that her hours were reduced. Things returned to normal in September 2023.

On 1 January 2024 the Deli Manager received a call from the complainant telling her that she was ill. This was accepted by the Deli Manager. The next day the complainant rang in sick again which left the store short staffed.

Mr Pokhrel stated that the following week the complainant was asked to provide a sick note; it is a requirement of staff who work in the food preparation area.  No doctor’s note was forthcoming and as a result the complainant was not rostered to work any hours.  There was no further communication from the complainant nor was a doctor’s note forthcoming.

Mr Pokharel agreed that since 2 January 2024, the complainant has not been given any hours.

Mr Pokharel stated that all staff who go sick for more than two days must submit a doctor’s note. He stated that he would offer the complainant her job back if she sent him a doctor’s note.

The key facts were not in dispute in this case.

The complaint is one of constructive dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

In this case the complainant accepted at the hearing that she had been given a Contract of Employment and a copy of company policies in 2022.

Looked at by reference to either of the above tests the complainant does not come anywhere close to the burden of proof necessary to ground her case.

The explanation provided by the employer regarding the requirement for a doctor’s note from an employee before they return to a food production area is totally reasonable.  It would have been easy for the complainant to accede to this request.  Her stubbornness in not doing so is the reason her work ended. A simple remedy was available to her, but she chose not to do what was necessary.

The EAT has made it clear in a series of decisions, and followed by the Adjudication Service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above)

For example, in Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant do not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However for a period of six months she did not attempt to resolve the issue.

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

Even by applying the ‘Berber’ test to the complainant’s conduct alone the case would be in difficulty. Her failure to avail of internal procedures renders this complaint untenable.

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.

Contract of Employment, Terms of Employment, Constructive Dismissal