Complainant

Respondent

Parties

Debbie  Kavanagh

Vanilla Hair

Representatives

Tommy Mcgarry

 Michael Morrissey Solicitor

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-00064745-001

12/07/2024

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

CA-00064745-002

12/07/2024

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

CA-00064745-003

12/07/2024

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

CA-00064745-004

12/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00064745-005

12/07/2024

The employer concedes the claim made under the Terms of Employment Information Act.

The Complainant commenced her employment as a hairdresser on the 22nd of October 2022. Her employment ended it is alleged by reason of constructive dismissal on the 12th of July 2024.

The Complainant alleges that in the 6-week period prior to her leaving her employment she was being pushed out by being ignored and a new employee hired to do her job.

The Complainant works 19 hours a week and in addition receives supplementary social welfare benefit that is linked to the 19 hours a week. It is argued by the Complainant if her hours reduced below 19 hours her welfare benefit also would be affected.

The Complainant stated that her employer wanted to reduce her hours by 50% and in addition in the period prior to her leaving she was isolated at work and was accused of failing to bill clients accurately.

The Respondent denies that the Complainant was being pushed out. It is accepted that a discussion took place about her hours and about reducing them; however, no decision had been taken. The new employee was not a replacement and did different work that the Complainant couldn’t do. In fact, there is a divergence between the two accounts, where the Respondent believed that the Complainant was looking for increased hours.

The Employer stated that the issue about billing arose because the Complainant failed to inform the receptionist about what precise treatments clients had, which meant they were not billed for the time and treatments received. It is also alleged that at times the Complainant was very slow.

The Employer stated that the relationship between her and the Complainant was very good and deteriorated over a number of weeks.  The Complainant also accepts that the relationship was good up until the last few weeks of employment.

The Complainant stated that she was being pushed out. She was tackled about not charging clients the right amount for styling and that had nothing to do with her. That was the job of the receptionist. The owner became very cold towards her and left her out of conversations. The Receptionist’s friend started to work at the hairdresser, and it was clear then that her job was on the line. On the 12th of July 2024 she was pulled aside and told her hours would be reduced by 50% from 2 days to 1 day. She asked was there any chance of keeping her hours and was told no. She explained why she needed the hours and how it linked into her supplementary benefit. As her hours had been halved she had no alternative but to leave.

The Respondent denies that the Complainant was being pushed out. It is accepted that a discussion took place about her hours, but it is not accepted that it was about reducing hours. The Respondent stated that a conversation did take place about productivity and that could have led to a misunderstanding. The Respondent stated that the Complainant had misinterpreted what she stated about her working hours. She never stated that they would be reduced. She was concerned about productivity and referenced hours of work in that context. However, she never stated she would reduce the hours by 50%. The new hire did not replace her rather did different work that the Complainant could not do.

The Employer stated that the issue about billing arose because the Complainant failed to inform the receptionist about what precise treatments clients had, which meant they were not billed for the time and hair treatments received. It is also alleged that at times the Complainant was very slow.

The Employer argued that at its height a discussion about working hours, accurate billing and productivity do not constitute unreasonable conduct where it could be maintained that the contract had been repudiated by mere discussion.

CA-00064745-001 Unfair Dismissal:

The relationship between the Employer had been very good until the last few weeks of employment.

The Complainant had experienced a very high level of anxiety prior to leaving and it is reasonable to assume that was linked to discussions about her productivity, billing and reducing her hours of work.

It is important to consider the entire factual matrix of this case and that includes the perceived risk to the Complainant of reduced working hours against the backdrop of a required number of working hours to maintain her social welfare benefit. It is this context that is important to consider when assessing if actions of the employer amounted to a repudiation of the contract and a breach of the implied term of trust and confidence.

It is a small business and the procedures and policies about hearing a grievance were detailed in a staff polices manual kept at the reception.  However, that manual was not opened at the hearing.

It is also a fact that no contract was provided to the Complainant which means there was no formal communication to her about raising a grievance.

The employee left without raising a formal grievance.

The Employer maintained that no decision had been taken about reducing hours, and it was legitimate to raise the matters with her employee, based on the business pressures that she had to manage and the Complainant’s relatively low productivity.

The Employer argued that at its height a discussion about working hours, accurate billing and productivity do not constitute unreasonable conduct where it could be maintained that the contract had been repudiated by mere discussion.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(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, or

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

There are two questions to ask:

·         Was the conduct of the employer so unreasonable that destroyed the relationship of trust and confidence between the company and the employee?

·         Did the company breach a fundamental contract of his employment?

On the facts hours of work had not been reduced, rather a discussion concerning terms had begun. That clearly was distressing for the Complainant; however, it does not give rise to a repudiation of the contract.

There is an implied term of trust and confidence and based on the cumulative effect of the interactions about terms of employment, it cannot be concluded that the conduct of the Employer was egregious or so unreasonable; that it could be said that objectively the contract was repudiated. The discussions about working hours, productivity and billing are legitimate matters for discussion, even when they cause upset and create uncertainty, as they relate to the efficient running of the business and are absent of a personal animus.

This conclusion does not underestimate the very significant anxiety experienced by the Employee relating to the proposed changes.

A Complainant must meet what is referred to as the mirror test as referenced in Meenan, Employment Law 2nd Ed. 2023 (Round Hall):

20-82

The company referred the tribunal to the cases of Conway v Ulster Bank136 and Beatty v Bayside Supermarket.137 Both these cases clearly established that, where there is a union/management agreement containing a grievance procedure, such a procedure should be substantially followed by employees when they consider that there is a breach of contract by their employer. In Harrold v St Michael’s House,138 the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

The question arises should the Complainant have initiated the grievance procedure prior to resigning?

The Complainant received no information about her terms and conditions. While the Employer stated that a grievance procedure was detailed in policy manual kept at the reception desk. The Employer stated that the complaint must fail, arising from this failure to raise a grievance.

The main reason why the claim for constructive dismissal cannot succeed relates to the fact that the conduct complained about was not so unreasonable that it could be deemed to have effectively given rise to a repudiation of the contract. The Complainant carries the burden of proof where the dismissal is in dispute. While the Complainant experienced extreme anxiety an objective test must be applied to the issues raised that it is argued amount to the repudiation of the contract. It cannot be maintained that discussions about productivity, hours of work, a new hire commencing must give rise to that conclusion on the balance of probabilities.

 An objective test means the issues detailed must be viewed not in relation to this particular employee and her personal circumstances; rather did the conduct of the employer objectively judged and having regard to the employer’s subjective intent if possible to glean a breach of the mutual term of trust and confidence. If not a contract breach, was the conduct so unreasonable to justify leaving because of the unreasonable conduct?

Redmond on Dismissal Law elaborates on what this means:

[5.25]

A breach of the implied duty of mutual trust and confidence is always regarded as repudiatory. The EAT in Britain regarded it as a fundamental breach in Morrow v Safeway Stores Ltd. 44 If a breach was not sufficiently serious to amount to a repudiation of the contract, it could not be a breach of the implied duty. Cumulative acts on an employer’s part may be taken into account in determining whether or not the employer has acted in a manner which has undermined the implied obligation of mutual trust and confidence: Lewis v Motorworld Garages. 45 The Court of Appeal in Lewis emphasised another important aspect of the implied obligation: the employer’s conduct is judged objectively, not subjectively. There may of course be circumstances in which it will be self-evident that the employer intends to undermine the relationship of mutual trust and confidence, as in Cantor Fitzgerald v Bird, 46 in which event a subjective intention will be of strong probative value.

The statutory test also provides for a reasonableness test even where no contract provision has been breached that would repudiate the contract. The working relationship between the parties had been good. However, the discussion about billing and productivity do not amount to unreasonable behaviour. Hiring someone else to do your job would; however, there is no proof in this case to show that was the intent. On balance and based on the facts when taken together they do not amount to unreasonable conduct.

The personal circumstances of the Complainant were challenging and the effect of reduced hours if implemented on her social welfare payment would be very worrying for her. However, wide discretion is given to an employer to run their business efficiently and productively and unless a fundamental breach can be shown to have occurred a constructive dismissal claim must be dismissed. There is a statutory reasonableness test; that must be proved in a constructive dismissal case by the employee. I cannot find that the conduct complaint about was unreasonable to uphold a constructive dismissal.  I find no evidence where such a conclusion could be drawn on the facts presented and so I must dismiss this complaint. It is a high bar and that must be viewed also in light of the mirror test comparison where an employer when they dismiss carry the burden of proof that they were reasonable and fair.

CA-00064745-002 Terms of Employment (Information) Act, 1994:

The claim has been conceded. The Information act is specific about what information an employee should receive. While that did not occur in this case; the failure to provide did not contribute to the Unfair Dismissal Claim as that occurred when the Employer began discussions about reducing hours that had been worked for some time. Those discussions came to no conclusion as the employee resigned.

I award the employee €1000 for this breach an amount I determine to fair and reasonable having regard to all the circumstances of this case.

CA-00064745-001 Unfair Dismissal:

For the reasons as set out in my Findings I find that the employment ended by reason of resignation and determine that the Complainant was not unfairly dismissed. The complaint is not well founded.

CA-00064745-002 Terms of Employment (Information) Act, 1994:

The claim has been conceded. The Information act is specific about what information an employee should receive. While that did not occur in this case; the failure to provide did not contribute to the Unfair Dismissal Claim as that occurred when the Employer began discussions about reducing hours that had been worked for some time. Those discussions came to no conclusion as the employee resigned.

I award the employee €1000 for this breach an amount I determine to be fair and reasonable having regard to all the circumstances of this case.

CA-00064745-005 while ticked as a complaint made under the Protection of Employees (Fixed-Term Work) Act, 2003, no case was made out and this claim is not well founded.

Constructive Dismissal