ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006368
Parties:
| Complainant | Respondent |
Parties | A Supervisor | A Hotel and Golf Resort |
Complaint:
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-00008603-001 | 06/12/2016 |
Date of Adjudication Hearing: 04/10/2017
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant claims that she was employed as a supervisor with the respondent company and following several incidents at her workplace and after a period out on sick leave she felt she could not return to her work and resigned her position. She claims that this amounts to constructive dismissal. The respondent claims that the complainant chose to resign her position by her own volition and refutes the claim to constructive dismissal put forward. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent on 19 July 2005 as a club house supervisor and worked there until she had to go out on sick leave for a period of time between April 2015 and mid-November 2015. She claims that when she came back to work there were a number of changes, the hotel and golf resort was under new ownership and the junior staff that had worked under her previously were now promoted to the same grade as she was. A meeting had been set up to facilitate her return to work and at this meeting the issue of hours of work were discussed. She said as it was coming into the winter months, there were less staff needed as a consequence of the seasonal business of the trade as compared to the summer months. She claims that at the meeting she was told “in no uncertain terms” that if she did not like the new arrangements “she knew where the door was”. The complainant claims that when she returned to work her worst fears happened. She claims that she did not get the hours that she had expected. She claims that the atmosphere around her workplace on her return had changed, it was now a more hostile environment and very different to how it was prior to April 2015. She claims that no attempt was made to facilitate her for taking breaks and she was even moved from day shifts to night shifts. She said that she felt she was not wanted there anymore and was being essentially “side-lined”. The complainant claims that she received a text message from the Bar Manager on Wednesday 25 May 2016, stating that the safe was down €50 and enquiring whether she had removed the cash from the safe on the Sunday or Monday previously, when she was on duty. A further text message was received later saying that the money was found at the back of the safe. The complainant claims that she felt “undermined by the texts but decided to let it go and not do anything about them”. It was her opinion that the Bar Manager should have undertook a complete search first and foremost before sending off texts like she had done. On 13 June 2016, the complainant claims that she received a call from the Bar Manager this time enquiring as to why the cash was short from three days earlier. The complainant claims that she could explain €39.00 of the missing amount but an additional €13.70 could not be found. The complainant claims that the Bar Manager berated her and told her it was her fault and that it would be coming out of her wages. The complainant claims that she became hysterical on foot of this personal attack. She felt she was being blamed for the missing money and was told it would be coming out of her wages. The complainant said that she suffered a significant psychological reaction and had to visit her GP. The complainant claims that she rang the respondent and spoke with the Resort Manager and told her what had happened. The complainant felt that the Resort Manager seemed to already know about the phone call and she invited the complainant in to meet with her and the Bar Manager to “clear the air”. However, the complainant said that she was in a “very fragile position” and having sought advice from her GP, decided that she was not up for a meeting with the respondent given the events that had unfolded. The complainant claims that her condition did not improve, so much so that she, in conjunction with her GP, decided that she was not capable of returning to the respondent’s workplace. The complainant claims that all this stems from the way she was treated by the respondent. She claims that she had no choice but to resign and this amounts to constructive dismissal. The complainant said that she is trying to get back to work following her resignation from the respondent. She said that she went to work in a similar establishment but could only work in the kitchen as she still felt stress and anxiety working with cash registers resulting from her time with the respondent. She claims that her health is improving now that she is away from the respondent’s workplace but she is still on medication for depression. The complainant’s representative had provided a rough estimate of the loss of earnings and future loss due to her having to leave her employment with the respondent. The complainant claims that the phone call on 13 June 2016, was the final straw; that there were multiple problems and unresolved issues with the respondent including not getting a contract of employment, her expected hours of work, not getting breaks, etc. In cross-examination, when a collection of documents were presented by the respondent including a contract of employment with what appeared to be her signature affixed, the complainant was unsure if she has seen the document before and unsure if the signature on it was her signature. Although after subsequent examination other identifying personal details, such as her bank details appearing on these documents seem to suggest that it was her contract of employment and her signature. Also in cross examination, the complainant said she had not progressed a formal grievance on the issues she had with the respondent but she claims that she had mentioned them previously to the Bar Manager. Finally, in cross examination, the complainant agreed that there was a problem with staff’s use of the cash register system and additional training was put on by the respondent to assist only a few weeks prior to the telephone call with the Bar Manager. The complainant presented her GP as a witness at the hearing and it was her evidence that the complainant had reacted very badly to the set of events. She had known the complainant for about 10 years and she had transformed from someone who was calm and composed to someone who was now full of anxiety and stress. She said the complainant was not getting better and seemed ‘deeply hurt’ by the respondent and it was her advice that the complainant should not return to work with the respondent. |
Summary of Respondent’s Case:
The respondent is a hotel and golf resort and states that the complainant commenced employment as a supervisor on 19 July 2005 and she was one of three supervisors working at the golf club/club house part of the resort. The respondent notes that the complainant resigned her position on 29 September 2016. The respondent said that the complainant took issue with two incidents in May and June 2016, which arose when the Bar Manager contacted her in relation to discrepancies in cash balances at the end of her shift. The respondent maintained that the discrepancies were not particular to her and were primarily of an operational nature, what it would consider as simple mistakes and nothing more. The respondent was of the view that these errors, which were regular, were down to inputting errors in the cash register or cash having being left in the cash register or the safe. The respondent claims that the Bar Manager noticed a €50.00 discrepancy between the cash register and cash balance on the 25 May 2016, the complainant was the supervisor responsible on the night for “cashing up” duty. The respondent claims that the complainant had previously indicated that she would not take calls outside of work so the Bar Manager sent the complainant a text to enquire if she knew about the missing €50.00. The respondent maintains that this was a routine query and like what happens with other employees on countless occasions. The respondent claims that the money was later located at the back of the safe and the Bar Manager sent another text to inform the complainant that all was in order. The respondent claims that the Accounts department noted that there were continued discrepancies in the cashing up of the cash register and a meeting was called for Accounts department management and the three supervisors to address the problem. Additional training was provided on how to use the cash registers as it was believed that incorrect use was behind the problem. The respondent said that on Monday 13 June 2016 the Bar Manager called the complainant and asked about another shortfall of €50.00 in the cash from the previous Friday. The respondent went through what had happened and said that the complainant could account for €35 of the shortfall but €15 was still unaccounted for. The respondent claims that it transpired that the remaining shortfall was subsequently found. The respondent claims that the Bar Manager asked the complainant why she had not voided the transaction and the complainant said that she was not aware that she could do that. The respondent claims that the Bar Manager reminded the complainant that she only received additional training on that function very recently. The respondent maintains that the complainant lost control and began screaming down the phone at the Bar Manager. The respondent denies that it ever said that the complainant stole the money or that the missing money would come out of her wages. The respondent claims that the complainant never returned to work and the Resort Manager tried to arrange a meeting with the complainant and wrote to her in this regard but the complainant refused to engage. The respondent claims that the complainant did at one stage call to the Resort Manager and it was agreed that the complainant would come in and meet her and the Bar Manager to sort things out. However, the complainant subsequently cancelled that arrangement. The respondent stated that it regrets that the complainant did not return to work. The respondent claims that on Wednesday 15 June the complainant spoke with the Resort Manager and gave her a doctor’s certificate and said she will be out on sick leave. The respondent referred to the complainant’s contract of employment in relation to activating employee grievances and it also referenced the Employee Handbook which sets out the procedure for informal and formal grievance procedures. The respondent claims that the complainant did not avail of the grievance procedure on any issue while employed with it. The respondent claims that the complainant was not dismissed and in relation to constructive dismissal it claims that there are two tests either or both of which may be invoked by an employee. The first test is the ‘contract test’ where the employee argues ‘entitlement’ to terminate the contract because of a fundamental breach of contract on the part of the employer and the second test is the ‘reasonableness test’ where the conduct of the employer was such that it was reasonable for the employee to resign. The respondent claims that there was no breach of the terms of contract and referenced the Supreme Court decision of Berber v. Dunnes Store [2009] IESC 10, where Mr. Justice Finnegan concluded, “The appropriate test must be applied to that conduct. In relation to the test the following matters are to be noted: -
The respondent also referenced the decision in Carthy v. Clydale Investment UD 1091/2004 where it was found that the employee had not discharged the burden of proof that she had been constructively dismissed particularly in her failure to utilise the company’s grievance procedures before resigning, which was considered unreasonable. The respondent also referred to Employment Law in Ireland by Cox, Corbett and Ryan para 21.49: “The question of reasonableness in the context of constructive dismissal works both ways. The employee must, in all circumstances, act reasonable in response to the employer’s behaviour. Thus, an employee’s failure to genuinely engage in a meaningful manner or to exhaust available procedures will make it very difficult for that employee to claim that he has been constructively dismissed.” The respondent also cited a number of other cases in support of its case, notable Conway v. Ulster Bank Ltd. UD 474/1981 and Harrold v. St. Michael’s House [2008] ELR1. |
Findings and Conclusions:
The Relevant Law Section 1 of the Unfair Dismissals Act 1977 provides that: "dismissal", in relation to an employee, means— (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee. (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 (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose; Conclusions I am satisfied that the complainant was employed by the respondent as a supervisor in the golf club/club house from 19 July 2005 until she resigned on 29 September 2016. The complainant relies on the reasonableness test of constructive dismissal and that it had been reasonable for her to resign, given the way the respondent acted towards her following her return to work after sick leave in November 2015 and ultimately the two contacts from the Bar Manager by text and the phone call in June 2016. It is submitted that this was reasonable for the complainant to conclude that it was futile and not in her health’s interest to return to work and meet with the respondent to “clear the air” because her trust and confidence in her employer was breached and her health determinately effected. She claims also that she felt she was not being taken seriously. The respondent denies the claim, asserting that the complainant has not met the burden of proof in a case of constructive dismissal. It states that there was no grievance raised by the complainant of any sort prior to the text and phone call by the Bar Manager to her which she seems to take most umbrage too. It claims that the text and phone call were of a routine nature querying routine matters and when it tried to encourage her to come in to work and sort things out she chose not to do so and resigned through her own volition. It submitted that it had acted reasonably at all times and that the complainant has not utilised the grievance procedure prior to her resignation. In respect of the relevant legal tests, it is clear the case of constructive dismissal is usually determined in relation to either the ‘breach of contract’ test, or the ‘reasonableness’ test. The breach of the employment contract claimed in the instant case is of the term of mutual trust and confidence. The Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test for whether employer conduct has breached the implied term of mutual trust and confidence in every contract of employment was an objective one. Finnegan J. held: “1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. 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.” In respect of the reasonableness test, I note the legal authorities opened to me namely Carthy v. Clydale investment, Conway v. Ulsterbank and Harrold v. St. Michael’s House. All of which place an onus on the emphasis on the employee’s failure to utilise the employer’s grievance procedures. I have also noted the decision in An Employee v An Employer (UD 720/2006) where the Employment Appeals Tribunal held “… We however find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. There was no reason put forth as to why an appeal to [senior manager] would have been unfair or biased and we accept that his failure to avail of this right by resigning on [date] is fatal to his claim… In constructive dismissal cases, it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.” There is a conflict of evidence on what was said between the parties in the telephone conversation on 13 June 2016. Different versions were presented regarding what was said and the tone used. The complainant’s evidence here is quite clear. She felt she was being blamed for the missing cash and it would be deducted from her pay. The Bar Manager was not present at the hearing to give direct evidence. Notwithstanding what was said or not I am convinced that this was the catalyst for the complainant not returning to her employment from this point onwards. I have heard the complainant’s evidence that this had an enormous effect on her and her health. I note that she rang the Resort Manager soon after and was offered an invitation to come in to clear the air which she ultimately chose not to do because she was not able to bring herself to go in. I note that two days later, 15 June 2016, the complainant presented medical certificates to the Resort Manager and said that she will be out from work. The complainant effectively was declared unfit for work from that point until she resigned on 9 October 2016. I note that the complainant’s solicitor wrote to the respondent on 29 June 2016 and raised many of the issues that are before me for consideration. Finally, I note that there has been an ongoing exchange between the parties up until the 22 September 2016 when the respondent’s solicitor, in response to the complainant solicitor’s letter notifying it that the complainant will be taking a claim to the Workplace Relations Commission, states that “[the respondent] is extremely disappointed …. [the complainant] cannot return to work. We would urge her to contact [resort manager] at [the respondents] with a view to attempting to resolve matters …” Having reviewed all the oral and written evidence of the parties, I make the following findings,
Applying the legal tests outlined above, I do not believe that the complainant has met either legal test for constructive dismissal. Applying the objective test laid out in Berber, I have had regard to the fact that the focus of the complainant’s issues related to events leading up to and in particular the phone call of 13 June 2016. The complainant has not raised a grievance with the respondent to allow it react to or set in motion the grievance procedure prior to the 13 June 2016. Following the phone call of 13 June 2016, she did not return to work and refused to engage with the respondent in its attempts to resolve her issues with the Bar Manager. Considering both legal tests and taking these factors into account, I am satisfied that the complainant’s resignation was premature. It cannot be said that she had little or no choice but to resign, or that the employer could be said to have repudiated her contract of employment. It is clear that the complainant felt aggrieved and it is fundamental that employees have access to grievance procedures to allow them raise issue with their employers when they feel aggrieved. She chose not to do so and therefore lost the opportunity to try to resolve this to her satisfaction. The only reason proffered by the complainant is that she claims she did not think that the respondent would take her seriously. I can see no reason in evidence why this would be the case and it has not been justified. Accordingly, I cannot find that the circumstances amount to constructive dismissal. |
Decision:
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.
For the reasons outlined above, I determine that the complaint of unfair dismissal fails. |
Dated: 4/12/17
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Unfair Dismissals Acts – constructive dismissal – failed to invoke grievance procedures – failed to engage with respondent |