ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015891
A Retail Assistant
A Fashion Retailer
Michelle Ryan, Ronan Daly Jermyn Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 06/12/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 8 of the Unfair Dismissals Acts 1977 - 2015, this complaint was assigned to me by the Director General. I conducted a hearing on December 6th 2018 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
The complainant attended the hearing on her own and represented herself. Ms Michelle Ryan of Ronan Daly Jermyn Solicitors represented the respondent. Four of the respondent’s managers attended and gave evidence; the HR Advisor, a Store Supervisor, a Store Manager and a Regional Manager.
At the opening of the hearing, the respondent provided the correct registered name of the company and I have amended this decision to show the correct name.
The respondent has a network of fashion shops in England and Ireland and, on December 5th 2014, the complainant commenced work as a retail assistant in one of their stores in a north Dublin shopping centre. She resigned on March 31st 2018. When she started in the job, the complainant worked for 12 hours each week, but, from the time she went to college, she reduced her hours to four hours a week and she generally worked on Fridays from 5.30pm until 9.30pm. At the time of her departure, she was on an hourly rate of €9.25. Submitting that the termination of her employment was an unfair dismissal, the complainant alleged that the store where she worked in north Dublin was not managed properly and that she was mistreated and not listened to, with the result that she felt that she had to hand in her notice.
Summary of Complainant’s Case:
In her complaint form, the complainant set out the reasons that she decided to resign from her job:
She said that her complaint is related to bad management and being mistreated and feeling that she wasn’t listened to by her supervisor, who I will refer to as “Ms Dunne,” with the result that she said that she was “forced into having to hand in my notice.”
The complainant said that she was mistreated and bullied by Ms Dunne, mainly because of bad management by the store manager, who I will refer to as “Ms Murphy.” The complainant said that Ms Murphy allowed Ms Dunne to overrule her. She said that meetings were held at which Ms Dunne “gave out to everyone sitting there, belittling people, being aggressive, using bad language.” She said that the manager allowed this to happen. Ms Dunne also made a member of the staff stay back to finish a task and then afterwards boosted to another person that the girl would not be paid.
For the Christmas party the employees told the manager they would prefer to go into town for the night and once again Ms Dunne took over and the manager allowed this. In the end, only three people went to the party. She said that further manipulation occurred around the time of Storm Ophelia when she said that Ms Dunne said that staff had to come to work, despite the storm warning and she told them that they would be disciplined if they didn’t come to work. The complainant said that shortly after this, the group message facility was deleted. She said that the manager had “absolutely no understanding or compassion for people’s situations.”
The complainant said that her rota was changed without her being informed, and that she always worked the same Friday evening shift from 5.30pm until 9.30pm. In her evidence at the hearing, the complainant said that, as a result of the changed rota, she was expected to come to work on Thursday, March 29th, but she didn’t come in, because she didn’t realise that she was expected in on that Thursday. She said that she missed a call from Ms Dunne that evening around 8.00pm. From this, she said that she figured out that she was meant to be at work. She said that she telephoned her supervisor to ask why her rota was changed and she said that Ms Dunne alleged that she, the complainant was annoyed, and this led the manager, Ms Murphy, to believe something that wasn’t true. A few weeks previously, the complainant said that she was thinking about handing in her notice, but she said that she wanted to speak to Ms Murphy first. She said that she was going to make a complaint about her supervisor, but Ms Murphy was on holidays and she said she would speak to the complainant when she got back. The complainant said she didn’t want to work with Ms Dunne and that she wasn’t the only employee in this predicament.
At the hearing, the complainant said that she never had a meeting with her manager to ask her if she was okay, and that she “brushes everything under the carpet and does not follow work procedures.”
When Ms Murphy was on holidays, the complainant said that she continued to work as normal and when she returned, Ms Murphy said nothing to the complainant and made no effort to speak with her about her concerns. She said that she wanted to speak with her manager about “a delicate issue about another member of staff.” Following this, there was a mix-up with the rota.
In March 2018, the complainant said that her father was very ill and attending hospital appointments. On March 31st, she was shopping in her store for her father when the manager, Ms Murphy, asked to speak to her. She thought that this was the opportunity she was looking for, to speak in private about the things that were concerning her. However, the complainant said that, rather than giving her an opportunity to talk, her manager “attacked” her for telephoning the shop to complain about the change in her roster. The complainant considered her manager’s conduct as “insensitive and unprofessional displaying zero people skills.” She said that she found this behaviour hard to believe, particularly when the manager knew that her father was very sick. She said that she felt that she had no choice but to hand in her notice.
The complainant said that she was one of the longest-serving employees in the shop and she was extremely upset at how she was treated. She said that she doesn’t think that she would have been subjected to such treatment if the store was being managed properly.
At the end of her complaint, the complainant alleged that the stock room in the store where she worked is a fire hazard.
Summarising her complaints about her experience of working for the respondent, the complainant said that the whole issue is about lack of respect. She said that she felt “discarded.” She said that it’s difficult to know how to get help with problems because the human resources department is in England and she didn’t know where to go to find the employee handbook. She said that when she had the argument with Ms Murphy on March 31st 2018, she handed in her notice “on the spur of the moment” because she was taken aback by the way she was spoken to by Ms Murphy.
Summary of Respondent’s Case:
Summarising the respondent’s case, Ms Ryan said that the complainant never made a complaint about bullying and she never raised a grievance to air her concerns about the behaviour of her supervisor or manager. The first time that the respondent was notified about the complainant’s concerns was when they received notice that she submitted a complaint to the WRC.
Copies of the complainant’s contract and of the respondent’s grievance and bullying policies were submitted in evidence. Ms Ryan said that the complainant received these policies at her induction and the complainant’s signed acknowledgement of having received the procedures was also submitted.
Ms Ryan said that while the complainant normally worked on Fridays from 5.30pm until 9.30pm, this arrangement was subject to change, depending on the needs of the store. The complainant resigned on Saturday, March 31st 2018, having not turned up for work the previous Thursday. The roster had been posted up in the store for about two weeks and was for the following four weeks.
While the complainant said that she happened to be in the store on March 31st, the evidence of the respondent is that she attended specifically to meet with the manager to discuss her absence and her complaint about the change to her roster. During this meeting, she resigned. In her evidence at the hearing, the manager said that the complainant left before she had a chance to discuss her decision to resign. Later that evening, the complainant sent the manager a text message to say that, in her view, she had worked her notice and that her last working day was March 23rd 2018. In her text message, she requested her P45.
Allegations of Bad Management and Mistreatment
The respondent’s case is that the complainant never raised with any member of management, or with the HR department, her concerns about bad management, mistreatment or the supervisor’s allegedly malign influence over the store manager. She was not rostered to work on the day of Storm Ophelia, which was October 16th 2017.
Ms Ryan argued that it is not correct for the complainant to allege that her supervisor and manager did not follow procedures because the company has a robust grievance procedure in place and both managers have been trained on how to use it. At the hearing, Ms Murphy said that she had a very positive working relationship with the complainant and that she was available to her if she wanted to raise any concerns about issues at work.
With regard to the change in the complainant’s hours of work, Ms Ryan said that there was no normal set rota and while the managers tried to accommodate the complainant so that she could work the hours that she wanted, this was always subject to change to suit the business. On the week commencing March 25th, the complainant was rostered to work on Thursday instead of Friday, and the updated roster was posted up four weeks in advance. The complainant rang Ms Dunne to complain about this and said that she had “had enough” and that she was going to hand in her notice. She said she would speak to Ms Murphy first. The complainant then sent a text message to Ms Murphy and a meeting was arranged for March 31st.
When the complainant went to the store to meet Ms Murphy, she was invited to sit down, but refused and simply resigned and left. A copy of an e-mail that Ms Murphy sent to the regional manager to confirm the details of this meeting was submitted in evidence. At the hearing, Ms Murphy said that she hoped and expected the complainant to come back to work, and that she did not process her termination for two weeks, even though the complainant had requested her P45.
It is the respondent’s case that it was not reasonable for the complainant to terminate her employment in these circumstances and her actions in this regard do not amount to an unfair constructive dismissal.
The respondent referred to a number of legal precedents in support of their position that the complainant has not discharged the burden of proof to demonstrate that she was dismissed unfairly.
Findings and Conclusions:
The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:
“dismissal, in relation to an employee means -
“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 without giving prior notice of the termination to the employer…”
The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, and considering that she never raised a grievance about the conduct of her manager, her roster or any other matter, was it reasonable for her, or was she entitled to terminate her employment?
The Reasonableness of the Employee’s Decision to Resign
In the case under consideration, the complainant did not attend for work as she was expected on Thursday, March 29th 2018. Two days later, she attended a meeting with her manager and, without getting into a discussion of any significance, she resigned. It is my view, that this meeting was an opportunity for the complainant to discuss her concerns about what she considered to be unacceptable conduct in her store, but she did not do so.
One of the legal precedents referred to in the respondent’s book of authorities is the Employment Appeals Tribunal (EAT) case of McCormack v Dunnes Stores, UD 1421/2008. Considering the reasonableness of an employee’s decision to terminate his or her employment, the Tribunal concluded that:
“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.”
The respondent’s book of documents contains a copy of a text message sent by Ms Murphy on March 31st, following the meeting with her and the complainant. In the message, Ms Murphy wrote:
“Hi (name of complainant), you have my rota and you know when I’m in store. I will inform (name of regional manager) and HR of your wishes.”
Ms Murphy said that the purpose of this message was to let the complainant know that she could come in to speak to her at any stage, and that it was an opportunity for the complainant to re-consider her decision to resign.
It is my view that the way that the complainant’s manager attempted to deal with her concerns about her roster on March 31st was constructive and reasonable. On the other hand, for some reason, it seems that the complainant decided not to engage in any discussion with her manager. No other issued had been brought to the manager’s attention at that time. At the hearing, the complainant said that she herself was not the subject of any mistreatment by the supervisor, but she thought that others were. I find this difficult to understand, as the complainant only worked for four hours each week, and she could not have been in the shop for long enough to properly observe relations between the supervisor and the other staff.
From her own evidence at the hearing, it appears that, on March 31st, the complainant may have been too upset or concerned about her father’s illness to discuss her issues about the rota, or any other matter. In any event, she resigned and, later that night, she asked for her P45.
It is well established that the burden of proof required in cases of constructive dismissal is a high bar for a complainant. It’s clear from her evidence that the complainant was unhappy with the relationships in the shop where she worked. She was perfectly entitled to resign if she wanted to remove herself from what she considered to be an intolerable situation. To succeed in a complaint of unfair dismissal however, the complainant must demonstrate that her employer has inflicted a fundamental breach on her contract of employment or, has acted so unreasonably, that she had no alternative but to resign. This complainant has not shown that her employer was in breach of her contract, or, that they acted unreasonably in their treatment of her.
Reasonableness is required from both parties, and it is my view that the complainant did not act reasonably by resigning before giving her manager a chance to deal with her grievance, and, before exercising her rights under the company’s grievance procedure so that the matter could be resolved in a more constructive manner.
I find that the complainant has not made out the standard of the burden of proof required that demonstrates that the conduct of her employer was such that she had no alternative, but to leave her job.
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 not demonstrated that her employer behaved so unreasonably that she had to resign from her job. As a result of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded.
Dated: 31st May 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne