ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010470
Parties:
| Complainant | Respondent |
Anonymised Parties | A Dog Groomer | A Grooming Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013882-001 | 08/09/2017 |
Date of Adjudication Hearing: 18/01/2018
Workplace Relations Commission Adjudication Officer: Marian Duffy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The complainant was employed by the respondent as a dog groomer from the 15th of September 2013 until the 13th of April 2017 when her employment was terminated. She was paid €460 gross for a 40 hour week. She is claiming constructive dismissal. |
Summary of Complainant’s Case:
The complainant said that she was employed as a dog groomer. For the first few years she had no problem with the work and she groomed 3 to 4 dogs per day with help from other staff. Then the number of dogs for grooming increased significantly to 7 or more per day depending on the breed. She felt that the numbers she was doing were out of her reach and she had to do overtime to keep up with the demand and she was not paid for it. She said that she was being paid €9 per hour at the time and after some persistence she got a pay rise. About a year and a half after starting she made a verbal complaint about the heavy workload and the quantity of dogs she was expected to groom. The respondent told her that she was expected to do that amount of work. She made her second complaint about being allocated to work in a hallway while the shop was undergoing renovations. She said her working conditions were poor. The salon had wires crossing the floor and the inadequate equipment did not allow her to work efficiently. She was still expected to groom the same number of dogs but her working conditions did not allow her to achieve her targets. When she did not reach, the timeframe set to have the dogs finished, the complainant said that the respondent accused her of not managing her time properly. She said that she was put under pressure on a regular basis. She submitted that a trainee started working with her in April 2015 and she was expected to train her while still grooming the same number of dogs without any extra pay. She was reprimanded by the respondent when the trainee groomer clipped one dog too short and nicked the ear of another dog. She said that the respondent was passive aggressive towards her and started slamming doors and snapping at her. She said that such behaviour happened on a regular basis. In January 2016, she requested help to groom two newfoundland dogs weighing about 60kg each and while she got help with the bathing she had to groom the dogs on her own along with 3 other dogs. She said that she found it was physically impossible resulting in the grooming table falling over. The next day when she came into work the respondent had put the hair from the newfoundland dogs on the grooming table in 2 perfectly formed mountain. The complainant believed that this was a way of telling her that she had not done her job properly. In January 2016, the complainant said that she was bitten on the finger by a dog. She was sent home that day and next day the respondent was not pleased when she could not do a full groom because of the bite. The respondent said to the complainant that it was only a little bite and then proceeded to slam the doors and throw things around. The complainant said that she was out of work with work related stress in March 2016. She said that the respondent developed a dislike of her and constantly spoke to her in a horrible tone referring to her as the groomer and not by her name. She said that she was being overworked and if she raised with the respondent she would turn her back and walk away. In June 2016, the respondent entered a partnership with another company, a grooming school was set up and a new groomer joined from this company. The complainant said that she was never told that she was working for a new company nor was she told who would be her boss. She said that the respondent continued to pile on the work and she was reprimanded when she did not have the dogs groomed within the timeframe. She was excluded and was not invited to staff events and lunches. She was now teaching in the school and was not invited to a dinner for a student from one of the courses. She received an email from the new partner (Ms. B) chastising her for not cleaning the grooming area properly. The complainant and other staff believed that there was no problem with the cleaning and when she said this to the respondent she said that it was her salon and would do what she wanted. The complainant said that she heard that the respondent was talking about her behind her back and had turned other staff against her. She said that the staff in day care no longer wanted to help her out with the dogs. The complainant said that because of her difficulties communicating with the respondent she asked if the instructions could come through the new partner (Ms. B) and the manager because she did not want any more conflict. The respondent continued to give her instructions that day and it felt as if the respondent was trying to provoke her. She felt stressed at work and that night she had to go to A&E with a panic attack due to work related stress. From September 2016 to November 2016 the complainant worked in the school and there was no conflict with the respondent during this period. She went back to grooming in December 2016 and coming up to Christmas she was continually over booked again. She was not invited to the Christmas drinks which she believes were organised by the respondent. On the 5th of March 2017, the complainant wrote to the respondent complaining about the treatment. She told the respondent that she was unprofessional in the way she treated her in front of staff and clients and that she was belittled. She received a response from the respondent around the 10th of March 2017. Staff were told that the partnership between the two companies was going to be dissolved as it had not worked out. On the 24th of March 2017, a meeting between the complainant, respondent and Ms. B took place to work out what was going to happen after the separation. The complainant said that before the meeting that the respondent had told Ms. B that she was downsizing and that the complainant’s hours would be less. The complainant said that Ms. B was aware of the difficulties between her and the respondent and for this reason she suggested a clean break and that the complainant could get another job. The complainant said that the respondent agreed to make her redundant and she promised she would put it in writing. After the meeting the respondent refused to confirm the redundancy in writing. The partnership ended on the 7th of April 2017. The complainant believed that she was offered redundancy at the meeting of the 24th of March and that the respondent failed to honour the agreement after the meeting. The complainant went out sick with work related stress. On the 13th of April 2017, she e-mailed the respondent informing her that her health had suffered because of the treatment of her by the respondent and that she could no longer work in an environment where her health might deteriorate further. Therefore, she intended to treat the terms of her employment as having been terminated because of the conduct of the respondent. She received a response from the respondent offering to sit down with her to resolve her concerns. The matter was not resolved and the complainant’s employment came to an end. |
Summary of Respondent’s Case:
The respondent submitted that the dismissal of the complainant is in dispute. It is common case that the complainant resigned from my position by email with affect from the 13th of April 2017. The claim therefore is a claim of constructive dismissal and the onus is on the complainant to show that the dismissal was unfair. It is submitted that the basis for the complainant’s decision to leave the employment was based on the fact that the respondent refused to make her redundant.
The complainant commenced employment with the respondent in 2013. The respondent company provides a dog grooming service and day care for dogs. It employs three staff. In 2016 the respondent entered a joint-venture with a third party (Ms.B) to provide a training school for dog groomers and a dog grooming business. A new company was set up and the complainant’s employment move to this company, but there was no change in her terms and conditions of employment. The new company ran into problems and both the principles decided to cease the joint-venture in late 2016 and it formally ended in April 2017. The complainant advised the respondent of her intention to resign by email dated the 13th of April 2017. The respondent asked her to reconsider her decision. The complainant wished to be made redundant. The respondent advised her that she was happy to sit down with her to resolve any difficulties and requested her not resign. The complainant subsequently resigned her position and took up employment with the former partner in the joint venture Ms. B. The respondent accepts that the claimant raised issues regarding the working relationship around the time the joint-venture ran into difficulties. The complainant outlined her concerns in a letter of the 6th of March 2017. Some of the issues raised went back to April 2015. She responded to the letter on the 15th March 2017 she addressed all the issues raised by the complainant and advised her, in that correspondence, that the joint-venture was coming to an end and that the complainant‘s role would revert back to grooming dogs. The respondent stated that she was very happy with the complainant’s work. They had worked together for four years she had assisted the complainant to upgrade her skills and she was successful in obtaining a City and Guilds qualification for teaching. The complainant built up a loyal client base and she was a very competent worker. She said that she never any reason to get rid of her.
On the 24th of March 2017, Ms. B called a meeting to discuss with the complainant and the respondent the complainant’s position after the ending of the joint venture. Ms. A told the respondent prior to the meeting that the complainant was seeking redundancy. The respondent said that she said very little during that meeting. It made no sense to her to make the complainant redundant as grooming was an integral part of her business since she opened and she had no intention of downsizing that part of the job. Furthermore, she said that she had no intention of changing the complainant’s hours. She said that she was being pushed into things by Ms. A which she did not agree with. She denies that there was a breakdown in the relationship with the complainant. she accepts that the work environment was pressurized at the time. She said there were a number of reasons for this including the breakdown of the partnership and financial pressure. The respondent accepted the complainant was under pressure on occasions from the number of dogs booked in for grooming. She said that when the complainant started she did not have as many dogs for grooming, but as she progressed she was expected to groom 6/7 dogs per day depending on the size. She knew the complaint was not happy on occasions as dog owners were telephoning to know when their dogs were ready. She said she tried to lighten the work load by bringing in a person, who had done a course in grooming, for work experience and also, she hired a cleaner.
The respondent said the company does not pay overtime but staff are given time in lieu. The complainant was allowed to finish early on days the salon was not busy. She said the complainant got additional benefits like having her dog looked after in daycare during working hours. When the complainant started with the company the dog grooming area was downstairs in a glass enclosed area. The complainant could get help from daycare staff with the larger dogs, because the staff could easily keep an eye on the dogs they were looking after. When the new partnership was formed, the grooming salon moved upstairs to make way for the grooming school downstairs, and it was not as easy to provide assistance to the complainant to bring the dogs up from downstairs as the staff in the daycare could not leave their dogs unattended. She said that the salon was well equipped with equipment to assist with the grooming.
The respondent denies that she was passive aggressive towards the complainant. She said she did not notice that the complainant felt excluded, but when she moved upstairs she may have felt excluded by other staff as she was away from the coffee area. There respondent said she spoke to the complainant about this but any suggestions she made were not accepted by her. She said that she did not exclude the complainant from the Christmas drinks nor was she aware that she was excluded. The drinks were organised by the day care staff and she did not know that the complainant was not invited. The respondent said there was no breakdown in communications between herself and the complainant but she knew that she was not happy and she was trying to work for a solution. She denied that she slammed the gate or was angry towards the complainant at any time.
The respondent denies that she told Ms. B that she was downsizing the company after partnership was dissolved. She said it was never her intention to give up a good business that she had established eight years ago. She never offered the complainant redundancy or told her that her job or hours would change. The complainant went out sick in April 2017. She e-mailed her on the 13th of April 2017 to say that she was resigning. The respondent replied asking her to a meeting to discuss her concerns and telling her she would not accept her resignation for the time being to give the complainant an opportunity to consider the matter. The complainant saying that she had been working in an unhealthy environment and despite raising her concerns the respondent had failed to rectify the matters complained off. The respondent replied offering again to meet her to discuss her concerns. The complainant remained on sick leave and did not return to work. She took up a job with Ms. B.
Respondent’s Legal Submission. It was submitted that the complainant does not meet the statutory definition of constructive dismissal as set out in section 1(b) of the Act. The respondent could not be deemed to have behaved in a manner such that the complainant “was or would have 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,” There are two tests the “contract” test whereby the complainant claims she is entitled to resign on the basis that there has been a significant breach of the contract by the employer which goes to the root of the contract and the “reasonableness” test whereby the complainant claims that it was reasonable for her to resign. It was submitted that the case of Berber -v- Dunnes Stores [2009} IESC 10 is relevant in a case of constructive dismissal. The Supreme Court considered that the test which should be applied to determine whether or not the behaviour of the employer was so unreasonable as to amount to a repudiatory breach which entitled the employee to resign was governed by the following general principles: (i) the test is objective, (ii) the test requirements that the conduct of both employer and employee be considered, (iii) the conduct of the parties as a whole and the cumulative effect must be looked at, (iv) 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. It was submitted that the cumulative effect of the interaction between the parties must be looked at and the Supreme Court in Berber: “That being the history of interaction between the appellant and the respondent and looking at each event individually and at the events cumulatively, I am satisfied that the conduct of the appellant judged objectively did not evince an intention not to be bound by the contract of employment. On the other hand, the conduct of the respondent was in the instances mentioned above unreasonable or in error and the employer’s conduct must be considered in the light of same. In these circumstances the purported acceptance of repudiation of the contract of employment by the respondent was neither justified nor effective.” It was submitted that this claim must fail on the basis that the behavior of the respondent was not such as to amount to a repudiation of the contract of employment. In Berber it was also stated “As to the ‘last straw’, it was held in Omilaju v Waltham Forest London Borough Council that the quality that a ‘last straw’ had to possess was that it was an act in a series whose cumulative effect amounted to a breach of an implied term. The essential quality of that act was that, when taken in conjunction with earlier acts on which an employee relied, it amounted to a breach of the of the employed term of trust and confidence.” The respondent submitted that it is not clear which acts the complainant is grounding her claim of constructive dismissal on, other than a refusal to provide redundancy, but it cannot be comprehended that a refusal to grant redundancy can be considered a breach or a repudiation of the contract. There respondent accepts that the issue of redundancy was raised at the meeting on the 24th of March 2017. The issue of redundancy was raised by the complainant and not by the respondent. The respondent had concluded that the complainant was to revert to original role that existed prior to the joint-venture commencing. The complainant had already been informed in a letter that a redundancy situation did not exist and that she would return to her old role following the dissolution of the partnership. It was submitted that the complainant could have sought to raise any additional concerns she may have had internally prior to tendering her as resignation. It was unreasonable and precipitance for the complainant to resign when she did as there was certainly no unreasonable behavior on the part of the respondent which would have either seriously repudiated any contractual term or which would have led her to think that she had no option but to resign. There respondent denies that the complainant was constructively dismissed from her employment. It was submitted that the Labour Court case of Paris Bakery & Pastry Ltd v Mrzljak DWT1468/2014 was relevant in relation to constructive dismissal. The employers conduct did not amount to either a breach of contract or a repudiatory breach of contract and the complainant has failed to discharge the onus of proof required to establish constructive dismissal. |
Findings and Conclusions:
The matter I must consider is whether the complainant was constructively dismissed as she resigned from the employment. Section 1(b) of the Unfair Dismissals Act 1977 defines dismissal as: “dismissal”, in relation to an employee, means— (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, In relation to a breach of the contract of employment the judgment in Berber v Dunnes Stores Limited [2009] IESC 10 is the authority. The Supreme Court held that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is 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.” The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. The ‘contract test’ is set out as follows: “If the employer is 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 other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Supreme Court in Berber cited above, “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 to determine if it is such that the employee cannot be expected to put up with it.” Therefore, this definition places the burden of proof on the employee to show that her resignation was justified in all the circumstances. I note that the complainant raised grievances with the respondent in a letter dated 7th of March 2017, which included, inter alia, complaints about her work load, non-payment for overtime, lack of assistance with large dogs, the respondent allegedly being passive aggressive and angry with her and the cleanliness of the salon. I note that the complainant said that she was not looking for a rebuttal of the points raised in her letter, she just wanted to highlight the behaviour which she did not consider acceptable. However, the respondent responded to each grievance in a letter dated the 15th of March 2017. I note that the respondent, while not accepting that the incidents occurred in the manner outlined by the complainant, she addressed each of the incidents and provided an explanation and apologised for any upset caused to her. While not accepting that her behaviour towards the complainant was passive aggressive she told the complainant she would be more aware of how she interacts with the people around her in the future. It would appear to me that these matters were dealt with at that stage. However, the complainant was not happy with the response, and it would appear from the evidence she had a discussion with Ms. B before the break-up of the partnership when the complainant’s leaving the employment was discussed. The event which triggered the ending of the employment occurred at a meeting of the 24th of March where a discussion about redundancy occurred. It was the complainants case that the respondent offered her redundancy at that meeting because she was downsizing the grooming and her hours would be changed. She alleged that the respondent reneged on that offer. It was the respondents case that the discussion concerning making the complainant redundant was initiated by Ms. A. and that she did not offer the complainant redundancy at that meeting. I note that the respondent prior to this meeting stated in her letter of the 15th of March 2017 in response to the complainant’s grievances the following: “As you have said in your letter the partnership between myself and Ms. B is coming to an end this effectively will mean in terms of your role that we revert back to where we were prior to the partnership. At this point in time I do not see myself engaging in running a grooming school, so your role will be primarily as before in grooming dogs.” It is clear from this letter that the respondent was continuing her grooming business and the complainant was returning to her previous role following the severance of the partnership. I am satisfied from a series of e-mails presented in evidence that it was Ms. B who raised the redundancy firstly with the complainant and then with the respondent and this led to the meeting of the 24th of March where redundancy was discussed. I am not satisfied that the respondent agreed to making the complainant redundant so the refusal to put the matter in writing cannot be construed as a breach of trust. While I accept that there were tensions between the complainant and the respondent, I am also satisfied that the respondent was making every effort to improve the working relationship and tried to dissuade her from resigning, but the complainant failed to engage or cooperate with the process. In the circumstances, I cannot accept that the respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Paris Bakery cited above. The conduct in relation to the redundancy claim certainly did not meet the standards implicit in a “last straw” incident as set out in Berber above. The evidence tendered by the complainant is not sufficient to support a complaint of constructive dismissal. In Berber cited above the Supreme Court test for constructive dismissal said that “the conduct of the employer must be unreasonable.” I find that no evidence has been presented by the complainant to support the contention that the respondent’s conduct was unreasonable. For all the above reasons, I find that the complainant has failed to meet the threshold to establish a complaint of constructive dismissal in accordance with Section 1(b) of the UD Act and as set out in the caselaw cited above. Therefore, the complaint fails. |
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.
I find that the complainant has failed to establish that she was constructively dismissed in accordance with the Act. Therefore, the complaint fails |
Dated: 09 April 2018
Workplace Relations Commission Adjudication Officer: Marian Duffy
Key Words:
Unfair Dismissal, constructive dismissal
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010470 Parties:
Complaint(s):
Date of Adjudication Hearing: 18/01/2018 Workplace Relations Commission Adjudication Officer: Marian Duffy Procedure:In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
Summary of Complainant’s Case:
Summary of Respondent’s Case:
Findings and Conclusions:
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.
Dated: 09 April 2018 Workplace Relations Commission Adjudication Officer: Marian Duffy Key Words:
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