ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011419
Parties:
| Complainant | Respondent |
Anonymised Parties | A Retail Assistant | A Retail Store |
Complaint:
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-00015302-001 | 25/10/2017 |
Date of Adjudication Hearing: 29/03/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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 alleges that she had to leave her job due to the conduct of the Respondent or others at work (constructive dismissal). |
Summary of Complainant’s Case:
The Complainant worked for the Respondent for 16 years. Since in or around August 2016 she worked in the Children’s Department. Her main duties were putting stock on the floor and pricing and tagging stock, and serving customers. She kept the area neat and tidy and all items put back in their relevant place. On 4th May 2017, the Complainant’s Supervisor asked her to empty a rubbish bin. An argument ensued between the Complainant and her Supervisor whereupon a Manager directed the Complainant to his office. There was a heated exchange there where it is alleged the Manager became aggressive and shook with rage. There was a further argument about protocol and procedure in appointing staff to positions. The Complainant further stated that the Supervisor was abusing her position. The Complainant terminated the meeting and left the employment. It is submitted that the Respondent breached a term of the Complainant’s contract and that the conduct of the employer was such that she could not continue to work with their organisation. Case law was submitted in relation to the test of reasonableness in constructive dismissal cases. It is submitted that the Complainant was constructively dismissed by the Respondent in circumstances where the conduct of its employees, namely the General Manager and the Supervisor, it was reasonable for the Complainant to terminate her employment. |
Summary of Respondent’s Case:
A preliminary point was raised in relation to jurisdiction. It was pointed out that the Complainant referred her complaint to the Workplace Relations Commission on 25th October 2017. However, the Complainant continued to send in sick leave certificates until 15th December 2017, and the Respondent was not aware of the Complainant’s resignation until her Solicitor confirmed her resignation on 8th February 2018. The end date of employment on the P45 is 13th February 2018. This leads to the possible conclusion that the Complainant’s complaint predates the termination of her employment and therefore there is no jurisdiction for her complaint to be heard. Without prejudice to this, the Respondent makes the following points: It is the nature of employment at a shop floor level that the tasks will vary from time to time. While some tasks may be more enjoyable or rewarding for an individual staff member than others, it is essential to the efficient and effective operation of the Respondent’s business that all work is done. The Complainant’s Supervisor was entitled to make reasonable requests of the Complainant and the Complainant was under a contractual obligation to comply with same. On 4 May 2017 the Complainant’s Supervisor issued the Complainant with a reasonable instruction to remove waste from the shop floor. The Complainant remonstrated with her Supervisor and the General Manager out of concern for customers, directed the Complainant to his office, where she continued to remonstrate with the General Manager. The Complainant left the premises and remained on medical certified leave until December 2017. The Respondent conducted a full investigation on foot of allegations made by the Complainant in her letter of 10th May 2017. The findings of the investigation were communicated to her by letter dated 21 June 2017. It is submitted that the Complainant failed to utilise the grievance procedure available to her and known to her through her contract of employment, and the Employee Handbook. The decision of An Employee v An Employer (UD 720/2006) makes it incumbent upon the Claimant to utilise all internal mechanisms open to her. The Tribunal held in that case that “the claimant did not exhaust the grievance procedure made available to him and this proves fatal to the claimant’s case”. For the Complainant’s case to succeed it must be established that the conduct of the Respondent was so severely in breach of the rights of the Complainant that no other avenue was open to the Complainant but to leave the workplace, (Donegan v Co. Limerick VEC UD828/2011). It is argued that the Complainant’s claim should fail. |
Findings and Conclusions:
In considering the preliminary issue raised by the Respondent that the Complainant prematurely entered her complaint of constructive dismissal I find as follows: The complaint was received on 25th October 2017. The Complainant walked out of her employment on 4th May 2017 and never returned to her workplace. Date of dismissal is defined in Section 1 [(1)] of the Act as follows: “date of dismissal” means – (a) Where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which that notice expires, (b) Where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates – (i) The earliest date that would be in compliance with the provisions of the contract of employment, (ii) The earliest date that would be in compliance with the Minimum Notice and Terms of Employment [Acts 1973 to 2005].q I note that the Complainant in this case considered herself constructively dismissed as a result of an incident in the workplace on 4th May 2017. I find that either her date of dismissal was that date, or in accordance with the definition of date of dismissal, 15th June 2017, this date being six weeks after the Complainant walked out of her employment. In either case, the Complainant’s complaint is within time and not prematurely submitted. I find therefore I do have jurisdiction. In relation to the substantive issue I find as follows: Constructive dismissal is defined in Section [(1)] of the Act 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”. I have reviewed the evidence submitted, of the incident which gave rise to the Complainant’s grievance and to the situation thereafter when the Respondent conducted an enquiry and gave the Complainant the opportunity to respond. I note that the Complainant did submit a grievance in her letter of 10th May 2017. I note that the findings of the Company investigation into allegations made by both the Complainant and her General Manager resulted in disciplinary proceedings being initiated against the Complainant, with no opportunity given to the Complainant to appeal the decision to move to disciplinary. I note the same Investigator who carried out this investigation then initiated the disciplinary proceedings and was communicated to the Complainant as the Investigator of the allegations of misconduct. I find that the requirement as in best practice to keep separate personnel involved in Investigations was not met in this case, and that the Respondent did not act reasonably. For those reasons I find that the Complainant succeeds in her claim. |
Decision:
The Complainant’s complaint is upheld. I find compensation to be the appropriate remedy and require the Respondent to pay to the Complainant the sum of €3,000.
Dated: 01 August 2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham