ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008402
Parties:
| Complainant | Respondent |
Anonymised Parties | A Restaurant Employee | A Restaurant |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011441-003 | 19/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00011441-004 | 19/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011441-005 | 19/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011441-006 | 19/05/2017 |
Date of Adjudication Hearing: 12/12/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The complainant was employed as an assistant in a food outlet. She began working for the respondent on August 1st 1999 and terminated her employment on May 17th 2017. The complainant says that she has been the subject of a constructive dismissal; (CA-0001441-004). She also complaints that she has been the subject of discriminatory treatment on the grounds of her gender and her disability; (CA-0001441-005 and 006). She also complains that she was denied benefit in respect of a public holiday and this appeared to relate to the May holiday in 2016. (CA-0001441-003). On January 18th 2017 she was laid off on a temporary basis to facilitate refurbishment in her workplace. However, in the course of the period in which the business was not trading she observed a number of her co-workers at work in the premises. All of those working were male. In due course, she got a text message telling her to return to work, but while the message said that this would be confirmed she did not hear anything further. When she presented at the premises (a Thursday) she could not gain admission and went home but did not contact the respondent. She got a second text the following Saturday telling her to return to work on Monday. In the meantime, she had seen her doctor who certified her as unfit for work. She submitted a formal grievance to the company in late February (the letter was undated.) It alleged discrimination and harassment. The respondent replied on February 20th inviting her to a meeting to discuss the grievance and the complainant replied on February 27th suggesting the appointment of ‘an independent and preferably a professional mediator’ to hear her grievance. Having heard nothing, she wrote again on March 28th enclosing a copy of her earlier letter and the respondent replied, (it appears to be on April 27th as the latter is again undated). They welcomed the suggested appointment of the independent third party and said they would seek professional advice on how to set it up. She continued to be absent on sick leave for nine weeks and submitted her resignation on May 17th and referred the matter to the WRC two days later. |
Summary of Respondent’s Case:
The respondent accepted the sequence of events as outlined above. They said that they had no issues with the complainant in the course of her employment and had no desire to see her leave. The initial closure was necessitated by the need to carry out urgent works to the business premises and a number of employees volunteered to work to assist with the refurbishment. The business was not trading while this was going on so the lay off of the complainant was entirely genuine. The incidents referred to by the complainant as constituting harassment took place in 2015 and were not raised until the complainant submitted her grievance over two years later. One of the issues arose from a food safety related consideration and the respondent had no choice in the matter The respondent was happy to meet the complainant and deal with the grievances; it was she who wanted them dealt with by an independent third party which was eventually accepted by the respondent. There was less urgency about the matter as the complainant was on sick leave (although she indicated that she would have been available to meet). |
Findings and Conclusions:
There are three complaints; two under the Employment Equality Acts related to the complainant’s gender and disability, and one of constructive, unfair dismissal. That related to the gender ground arises from the engagement of some of the complainant’s co-workers to assist with the refurbishment and the alleged exclusion of the complainant. The respondent says a number of the employees offered to assist and were given work on the refurbishment, not as part of the normal trading activity of the business. The business employs twelve people and is evenly divided between men and women. All those who participated in this work (three or four) were male, so there were some male employees who did not work. If work was to be made available it would have been fairer to invite all employees, male and female to express an interest in doing it. However, failure to have done so will not necessarily turn it into an act of less favourable treatment on the gender ground and in this case it seems to have been purely a random process. The complaint under the disability ground was very confused. This related to alleged harassment which occurred in 2015 and falls well outside the time limits for making such a complaint, especially as it was not brought to the respondent’s attention until two years later. The complainant also accepted in the course of the hearing that at the she did not have the disability on which she now relies at the material time. The complainant consulted what she described as a community law centre in the course of her sick leave for support in the processing of her complaint. It may have been the author of the strategy to seek the appointment of a mediator and to decline a meeting with the respondent. It was dubious advice on both counts. On the basis of the facts before me there was nothing in the complaint which could not have been discussed with the respondent at least on a preliminary basis. It will not be uncommon for a business owner or manager to be the subject of a grievance. This does not automatically mean that an issue cannot be discussed with them. The complainant’s letter of February 27th states that as the business owners were the subject of the grievance it was not ‘appropriate’ that they should deal with it. Whether it is ‘appropriate’ or not is a matter that will turn on the facts of each case but it will rarely be the case that simply stating that is inappropriate will be sufficient to justify not doing so. On these facts there was nothing inappropriate in principle about the owners of a small business having a discussion with their employee about her grievance. Few businesses could continue to operate and sort out grievances locally and quickly on the basis of such an extreme view. The grievance letter was verbose, pretentious and litigious and more suitable to possible court proceedings than to a grievance in a business employing a dozen people. It understandably became an obstacle to a resolution of the issues between the parties. In fact, the complaint was, in the main, quite appropriate for the attention of the business management. The complaints were as follows 1. The failure to engage her during the refurbishment work, 2. Favouritism of certain staff 3. Harassment and workplace stress and its impact on the complainant’s health 4. An unspecified allegation regarding the owner’s ‘disrespectful’ behaviour 5. Outstanding monies due to her.
There is nothing here that is not ‘appropriate’ for a discussion with the business owners even if items 3 and 4 might have required further processing, including possibly by an external third party. The suggested appointment of a mediator to ‘hear’ a grievance betrays an unfortunate ignorant of the role of mediators; they do not ‘hear’ grievances. As noted earlier, the complainant’s letter of late February was the first the respondent had heard of any of these grievances. Bearing in mind that the complainant had almost twenty (she says in the letter over twenty) years’ service her advisors displayed little sensitivity to and understanding of the dynamics of a small workplace and no interest in actually resolving the issues between the parties. Turning to the complaint 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 any 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. The most common complaint under the Act is when an employer has terminated the employment and these are then the tests as t whether the dismissal has been a fair one. In general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then 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 but 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. 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.) In Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268 ‘The Tribunal finds that the claimant did 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. I must consider what, if anything in the respondent’s conduct meets the tests set out above in Berber in relation to unreasonable behaviour justifying the complainant terminating her contract. This involves reviewing again the period between the submission of the grievance and the resignation. In this case, the complainant brought the matter to the respondent’s attention in an undated letter which was replied to by the respondent on February 20th 2017, which included an invitation to meet to discuss the contents of the letter. As referred to above the complainant replied seeking the name of the person who would hear her complaint. She heard nothing and wrote again on March 28th but again heard nothing until just under a month later on April 27th. Although that letter promised action none materialised. It also drew attention to what it described as the complainant’s ‘refusal to meet’. She responded on May 2nd denying that she had refused to meet, but that she had requested that a meeting take place with a mediator Having heard nothing further she resigned on May 17th. Without doubt the delay in dealing with the matter was unacceptable. For three months, the employer did nothing to process the grievance. I bear in mind also that the complainant was on sick leave throughout this period, although she told the hearing that she would have been fit to participate in the grievance process. However, I find as a matter of fact the complainant did refuse to meet her employer, unreasonably insisting that the matter be dealt with by an external mediator. Is there a right to insist on third party intervention, especially as in this case and as put to the employer given that it was presented in such a confused manner? Insofar as it related to mediation as it is generally understood there is not; mediation is a voluntary process and while in this case the respondent agreed to the proposal it is far from clear that it knew what it was agreeing to. If the complainant wanted a third-party investigator she should have said so. If she wanted mediation, then the language of ‘hearing’ the case is wrong. In the letter of May 2nd this had become a request for ‘a conversation with a mediator present’. In any event, it is dubious whether any generalised right to refuse to meet one’s employer can be said to exist, except in a situation where there is a demonstrable justification for such refusal. None was made out in this case in the letter of grievance and therefore I attribute blame to the complainant for the delay in having the matter processed. It is important to note that only two issues raised in the letter of complaint were in any way contemporaneous; her non-engagement in the refurbishment, a relatively minor matter, and a claim for two days’ pay. Her claim that she was subject to ‘excessive work related stress and workplace harassment [which had] exacerbated the balance of my mental health’, the allegation of ‘a systematic campaign of harassment’ and ‘an oppressive and intimidating working environment’ were news to the respondent when raised in February and lack credibility. It is hard to avoid the conclusion that her annoyance at being excluded from the refurbishment work was the real source of her grievance. In addition, the confusion over her return to work played some part but this too, is a minor matter. Whatever their origin, even the respondent’s lack of urgency in addressing them is insufficient to meet the test set out above of conduct entitling the complainant to break her contract of employment. I find therefore that she was not constructively, unfairly dismissed and her complaint (CA-0001441-004). fails. She has failed to make out a prima facie case in respect of the complaints under the Employment Equality Acts (CAs-0001441-005 and 006) and they too fail. Her complaint under the Organisation of Working Time Act in respect pf a public holiday in 2016 (CA-0001441-003) was not made within the required time limits and it too fails. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons fully set out above I do not uphold complaints (CA-0001441-003, 004, 005 and 006) and they are dismissed. |
Dated: 05/04/18
Workplace Relations Commission Adjudication Officer: Pat Brady
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