UDD2110

1. Appeal of Adjudication Officer Decision No:ADJ-00022049 CA-00028911-001.

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 3 March 2020 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 13 January, 2021. The following is the Determination of the Court:-

DETERMINATION :

Determination.

This is an appeal by Conor Mc Laughlin Mc Morrow & McLaughlin Solicitors (hereafter the Respondent) against an Adjudication Officer’s Decision ADJ-00022049 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that Ciara Monaghan (hereafter the Complainant) was unfairly constructively dismissed by her former employer the Respondent. The Adjudication officer upheld the complaint, found that the Complainant was unfairly constructively dismissed and awarded compensation of €13,300.

Background

The Complainant commenced employment in the solicitors’ practise on the 3^rd November 2008. On the 29^th November 2018 the Respondent became her new employer under a Transfer of Undertakings. Following on from the transfer the Respondent made unilateral changes to her contract and failed to pay her fees on time in respect of her practise certificate. The Complainant raised a formal grievance, at the first meeting the Respondent offered her a severance package with conditions attached that she could not agree to. The Complainant felt her concerns were not being addressed. On the 26^th March 2019, she handed in her resignation. It is the Complainant’s case that she had no option but to resign.

The Complainant lodged her complaint on the 7^th July 2019. The Adjudication Officer issued their decision on the 4^th February 2020 and the within appeal was received by the Labour Court on the 3^rd March 2020. As dismissal is in dispute it is for the Complainant in the first instance to establish that a dismissal occurred.

Complainants submission

The Complainant submitted that after the transfer of undertakings occurred the practise changed. It was her evidence to the Court that when she came back to work after the Christmas break 2018, she had numerous emails amongst which were a new contract and a staff handbook. The Complainant stated that she was surprised at the new contract which contained a number of changes to her existing terms and conditions. The new contract discounted her previous service, reduced her annual leave entitlement from 20 days to 12 days, had a probationary requirement of six months, and had changes to the location and restrictive clauses in the contract. It was the Complainant’s evidence that she had a number of exchanges in person and by email with the Respondent about the changes to her contract and her understanding that under the legislation governing Transfer of Undertakings she was entitled to maintain her same terms and conditions of employment. By email of the 29^th January 2019 the Complainant noted that some of her concerns in respect of the contract had been addressed but that there were still issues to be addressed in respect of changes to paragraph 3 of the contract, changes to the restrictive clause from 6 months to 12 months and the fact the contract still contained a requirement to complete a probationary period. It was the Complainants evidence that these issues were still ongoing at the time she handed in her notice.

The next issue the Complainant raised was in respect of the renewal of her practise certificate which falls to be renewed on the 31^st January each year. In line with the practise in previous years the Complainant completed the form. The practise in previous years had been that the owner of the practise would send off the form and pay the fees. It was the Complainant’s evidence that the Respondent told her when she left the completed form in his office that he would not be renewing her certificate until she had signed the contract. In early February the Complainant received two emails from the law society advising that her form had been received but payment had not and looking for the payment to be made. It was the Complainant’s evidence that she forwarded the emails to the Respondent on the 11^th February 2019 and followed up with further emails on 12^th and 13^th of February but did not receive a reply to any of the emails. The Complainant did receive an email from the Respondent during that period, but it was in relation to another matter and no mention was made of the emails from the Law Society. The Complainant received her practise certificate in and around the 1st March 2019.

The Complainant also gave evidence in respect of other issues that arose including the redirecting of a client who had requested to speak to her ,where the Respondent advised that no body of that name worked in the practise. The failure of the Respondent to include her details on the website and receiving a text message from the Respondent looking to know where she was when she was on one occasion two minutes late for work. It was the Complainants evidence that she tried to resolve these issues with the Respondent without success so by email of the 28^th February 2019 she raised a formal grievance.

A meeting was arranged for the 8^th March and in attendance was Mr Conor Mc Laughlin solicitor and owner of the practise, the Complainant and Ms Orla Moran who chaired the meeting.

It was the Complainant’s evidence that she set out each of her grievances at that meeting and while Mr Mc Laughlin responded, his responses did not resolve the issues. It was her evidence that in the course of the meeting he offered a severance package to her in line with a redundancy payment but indicated that it would be paid over the remaining months of the year. A further meeting was scheduled for the 15^th March 2019. However, at that meeting Mr Mc Laughlin refused to address her outstanding grievances on the basis that he felt they had been resolved at the previous meeting.

By email of the 13^th March the Complainant confirmed that the offer of a severance package to be paid over a number of months was not acceptable. The Complainant was absent on sick leave from the 18^th to the 21^st March 2019. On her return from sick leave on the 22^nd March 2019 for a scheduled grievance meeting with Mr Mc Laughlin she noted that she had received an email on the 19^th March while she was absent from Mr Mc Laughlin asking her to out line her grievances and to confirm who would attend with her at the meeting arranged for the 22^nd March 2019. At that stage Ms Mc Morrow had indicated that she would not be attending the meeting. The meeting on the 22^nd did not go ahead. It was the Complainant’s evidence that in error she sent an email suggesting the 1^st of April 2019 for a meeting, but she quickly corrected that to the following Monday the 25^th March advising that she would be accompanied at the meeting. Mr Mc Laughlin responded at 1.38pm advising that he was not available on the 25^th but she did not see that email till the morning of the 25^th as she finished work at 1.30pm. Mr McLaughlin when indicating his unavailability on the 25^th did not suggest any alternative dates for the meeting. It was the Complainant’s evidence that at that stage she had lost all hope that the Respondent would address her issues so on Tuesday the 26^th March 2019 she handed Mr Laughlin her notice in writing advising that her grievances had not been dealt with and that the work environment had become unbearable, leaving her with no option but to resign.

In her evidence the Complainant submitted that she started looking for alternative work and that she secured her current job on the 3^rd of June 2019 nine weeks later. It was her evidence that her net earnings in her new job are €20 a week less that what she earned with the Respondent for the same number of hours. It was put to the Complainant in cross examination that her complaint form to the WRC showed that her commencement date with her new employer was in fact 6^th May 2019. It was the Complainant’s evidence that the form had been completed by her legal representative who is now her employer, and that the date of 6^th May was an error.

Respondents submission.

It is the Respondent’s submission that the issues raised by the Complainant were addressed in a timely matter and in line with their grievance procedures. It is the Respondent’s submission that the Complainant if she was unhappy with the outcome of the grievance procedure could have appealed and by email of the 26^th March they advised the Complainant of her right to appeal and asked her to indicate what matters she felt were resolved and what matters were not and why. The Complainant never availed of the opportunity to appeal. In respect of the Complainant’s issues relating to her practise certificate it was the Respondent’s submission that the Law Society take their time sending out the certificates but same was sent out on the 25^th February 2019. It was their submission that if the fee and the practising certificate application form had not been received by the 31^st January 2019 then the certificate would not have issued. Mr Conor Mc Laughlin who had taken over the practise in 2018 in his evidence to the Court stated that he had paid the fees by Bank Transfer on the 31^st January 2019. It was his evidence that when he received the mail from the Complainant with the correspondence form the Law Library on the 11^th February 2019, he contacted the Law Library. It was his evidence that there had been a mix up on the part of the Law Library which was then resolved. It was his evidence that he told the Complainant on the 11^th about the mix up, but he could not recall whether he had told her face to face, by phone, or by email. In response to a question from the Court he was unable to explain why when he received emails from the Complainant in respect of her practise certificate on the 12^th and 13^th February that he had not responded setting out that he had contacted the Law Library on the 11^th and resolved the issue. The Respondent confirmed to the Court that he had not submitted to the Court any documentation in respect of the Bank transfer on the 31^st January 2019.

It was Mr Mc Laughlin’s evidence that the issues that arose in respect of the contract were errors which he resolved and that he had been using a Law Society template. In respect of the contract issues that were outstanding at the time of the grievance meeting on the 8^th March 2019 it was his evidence that at that meeting he indicated that he would drop the changes to the contract. In response to a question from the Court Mr Mc Laughlin was unable to explain why the minutes of the meeting of the 8^th March which he had taken and submitted as part of his submission to the Court did not reflect that the contract issues had been resolved in that manner.

Mr Mc Laughlin is his evidence informed the Court that in respect of the website, the information he had received from the Complainant was not in the required format and that he was under a time constraint to proceed with same. The issue in respect of redirecting a client was a genuine error as there is a solicitor with a similar name working in another firm and he understood that’s who the client was looking for. The text in respect of whether she was in work was just to establish if she was attending the office that day or if he would need to reschedule some work. It was Mr McLaughlin’s evidence that he believed that all the Complainant’s grievances had been resolved at the meeting of the 8^th March 2019. It was his evidence that the meeting of the 15^th March was to follow up on work related issues which they had discussed following the grievance meeting on the 8^th March only. On the 15^th March at about 12 noon, he had sent an email asking if they could meet the following Friday the 22^nd to discuss matters not reached at the meeting on the 15th . This was followed by an email of the 19^th March asking if the Complainant was appealing the decision of the meeting of the 8^th March 2019 of if there were new issues. The Complainant did respond by email on 22^nd March 2019. Later the same morning, the Complainant suggested a meeting on the 1^st of April but subsequently changed it to the following Monday 25^th March 2019. It was the Respondents evidence that he responded advising that he was not available as he was waiting on confirmation re an arbitration on that date. By email of the 26^th March Mr Mc Laughlin had emailed the Complainant asking if she was looking to appeal and asking that she outline what she wanted addressed at the second meeting. On the same day the Complainant handed in her letter of resignation .

It was the Respondent’s submission that they had a number of issues with the Complainant’s work practises which they had sought to resolve with her but that she had not engaged proactively on these issues. The Respondent had written to the Complainant on the 12^th April 2019 setting out the issues and advising that they were prepared to have a further grievance meeting with her.

The applicable law

Section 1 of the Act defines constructive dismissal in the following manner

“ 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,”

Section 6(1) of the Act states

“ 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 the circumstances, there were substantial grounds justifying the dismissal”.

Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”
an employer must be “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”
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This 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, if so he is justified in leaving. The Representative of the Complainant submitted to the Court that they were relying on the contract and the reasonableness test. The Representative for the Complainant also referred to other authorities which addressed both the contract test and the reasonableness test in support of their position. The representative for the Respondent referenced Western Excavating and other authorities in support of their position.

Discussion
In respect of the contract test it is the Complainants submission that the changes to her contract such as discounting her previous service, reducing her annual leave entitlement from 20 days to 12 days, inserting a probationary requirement of six months, and inserting changes to the location and restrictive clauses in her contract all constitute a significant breach going to the root of the contract. There was contradictory evidence put before the Court in respect of whether or not the contract issues were resolved prior to the Complainant handing in her notice. It was the Respondent’s evidence to the Court that at the meeting on the 8^th March 2019 he indicated he was no longer going to pursue the outstanding issues in respect of changes to the contract. However, the Court notes that that position was not reflected in the minutes of the meeting that he produced. The complainant’s position was that at the time she left there were still outstanding issues including the requirement to complete a probationary period despite having over ten years of service. The Court having carefully considered the submissions made and the evidence before the Court prefers the evidence of the Complainant on this issue and finds that the unilateral changes to the contract constitute a significant breach of the employment contract such that would meet the test set out in Western Excavating referenced earlier.
The Court having determined that the Respondent was “guilty of conduct which is a significant breach going to the root of the contract of employment” did not need to consider the additional reasonableness test.

Findings

The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submission made by the parties .On the facts of this case the Court finds that the unilateral changes to the contract constitute a significant breach of the employment contract and that it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment. The Complainant sought to ventilate her grievance through the grievance procedure without resolution.

Determination

In all the circumstances, the Court finds that there was a significant breach of the employment contract that would justify the Complainant’s terminating her employment by way of constructive dismissal. Accordingly, the Court must hold that the Complainant’s employment did come to an end by dismissal.
The Court determines that the Complainant is entitled to compensation of €5,641.8 calculated as follows; €420.20 x 9 weeks being the gap between her dismissal and the commencement of her new job and €20 x 93 being the differential between her wage at time of dismissal and her wage in her new employment up to the date of the Labour Court hearing.

The Court determines that the Complainant’s complaint is well founded. The appeal is rejected. The decision of the Adjudication Officer is varied accordingly

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
MK	______________________
4 February 2021	Deputy Chairman