ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018457
Parties:
| Complainant | Respondent |
Anonymised Parties | Deli Assistant | Convenience Store |
Representatives | Gerard Gallagher Gallagher & Co Solicitors and Notary Public | Sarah Tracey and Lisa Conroy Peninsula Group Limited |
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-00023639-001 | 29/11/2018 |
Date of Adjudication Hearing: 25/04/2019 and 07/10/2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
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 Respondent raised a preliminary point.
The Complainant complains that he was constructively dismissed on the 4th of October 2018. The Respondent’s case is that the Complainant at no state communicated to the Respondent that he believed himself to be constructively dismissed and he continued to submit sick certificates covering the period to the 1st of December 2018. The Respondent’s case is that the Respondent did not consider himself to be constructively dismissed either on the 4th of October 2018 or any date before the receipt by the WRC of the complaint form on the 29th of November 2018.
The Respondent relied on the case of Siwak –v- Ballinrobe Waste Disposal Company Limited UD1792/2012 wherein it was held by the Employment Appeals Tribunal that the claim form submitted to the tribunal’s secretariat predated the date of the dismissal and so the tribunal did not have jurisdiction to hear the case. |
Summary of Respondent’s Case:
CA/00023639/001 – Constructive Dismissal
The Complainant was employed in July 2016 as a deli assistant. Throughout his employment his manner was at all times aggressive, rude and inappropriate. He would occasionally fly off the handle over very small matters. The Respondent spoke to him informally on a number of occasion about the manner in which he spoke to colleagues, customers and management. Overall however he was a good worker and his behaviour could be managed.
On the 10th of July 2018 after the end of the Complainant’s shift the Respondent received a verbal complaint about the Complainant’s behaviour from a customer. That customer followed up with an email in the following terms:
“It is out of respect of your business that I am writing to you with this concern.
I was in your store Tuesday 10/07/18 lunchtime…I asked your employee [Complainant] that was working in the deli for 4 slice of ham. His first response to me was No. I was taking aback by it at first, then I thought your machine was broken as he used a knife to cut the ham when I repeated my order. As he was cutting my ham, he started telling me that the machine wasn’t cleaned the previous night. I replied that this was none of my business, I was on my lunch and just wanted 4 slices of ham.
As he handed me my ham he said this place is “filthy” – I was absolutely discussed [sic] as I’m a customer of your store for years and I would definitely not agree with your employee comment”
A meeting was held with the Complainant about this behaviour on the 12th of July 2018 and the Complainant was advised that he would be issued with a warning letter. During that meeting the Complainant was very aggressive throughout, complained about his holidays, complained that he did not get enough notice of the dates. The meeting notes of that meeting records the following conversation:
“He spoke about his holidays and the lack of notice. Siobhan brought it to his attention that he was asked earlier for holiday dates but never came forward with them. On the 9th of July he knocked on the office door and said he wanted his holidays sooner rather than later. He was told he could take his summer holidays commencing the 2rd July for two weeks. He got 13 days Notice”.
A written warning issued to the Complainant on the 16th of July 2018.
After that incident the Respondent submitted that it appeared to them the Complainant was hell bent on being disruptive and insubordinate. He became increasingly aggressive shouting at other staff members and management. He made continual reports to the environmental health officer about the business. These complaints were fully investigated and only minor non compliance noted. He began refusing to follow procedures that he had been following for some two years without issue. It seemed like he was trying to antagonise the Respondent into acting harshly and terminating his employment. He went so far as to say to the accounts manager “fire me if you want”.
The Complainant’s union wrote to the Respondent on the 13th of August 2018 expressing concerns about the procedural fairness of the disciplinary process. On foot of this the Respondent took advice which led to them revoking the written warning and moving to start the disciplinary process again.
The Complainant raised a grievance on the 1st of August 2018. This was acknowledged by memo 22nd of August 2018. On the 22nd of August 2018 some of the issues were discussed in a meeting and addressed. Further grievances followed on the 29th of August 2018.
The Complainant then went on holidays for most of September 2018.
The Respondent tried to reconvene the disciplinary hearing for the 1st of October 2018. It planned to deal with the grievances after the disciplinary hearing. The Complainant asked for more time for the disciplinary hearing to take place. It was adjourned to the 8th of October 2018.
On the 4th of October 2018 after his shift the Complainant went on sick leave due to anxiety and tiredness. He submitted regular sick notes for anxiety, insomnia and tiredness for dates up to and including the 30th of November 2018. The Complainant submitted his complaint form to the WRC on the 29th of November 2018.
In response to the complaints in support of the claim of constructive dismissal the Respondent replied:
The Respondent responded to all of the allegations of giving rise to the complaint of constructive dismissal in their written submission. |
Summary of Complainant’s Case:
The Complainant’s case is that issues arose in his employment around understaffing at his work station. He submitted that the kitchen/deli area required two people to staff and since a colleague left in May 2018 he was left staffing this area on his own.
The understaffing of the area led to very poor standards of hygiene. He was required to spend the first hour of each shift trying to clean the kitchen, prepare food, service, manage inventory and maintaining HCCP and food safety records. The Complainant felt he could not do everything that was asked of him and he complained to his managers on several occasions. No action was taken. He reported matters to the local environmental health officer on two occasions in 2018.
The Complainant felt his workload had been increased to an unmanageable level.
The Complainant had brought a grievance in that regard in September 2017. He advised the Respondent owner that he had spoken with SIPTU. Her response was to turned her back to him and walked away.
Throughout his employment the Complainant was not allowed to request holiday times. Rather he was told when he could take his holidays. On two occasions he was only given seven to ten days verbal notice. He was forced to take holidays in February 2018. He was advised he would be facilitated for his next holiday request. He requested to take holidays for September 2018. He was refused. He was compelled to take holidays in July 2018. In July 2018 he could not afford to travel home due to high fares. He objected and complained to being forced to take holidays but his complaints were ignored.
The Complainant gave evidence that the Respondent’s behaviour was inappropriate, intimidating, demeaning and deeply upsetting.
He asked for more detail in his payslip. He did not know how much he was getting paid per hour. He could not be sure if he was paid for all of his workhours. He was paid hourly but his payslips did not detail for how many hours. When he asked for the detail to be inserted he was told “do it yourself”.
He was concerned about deductions being made from his payslips. He was threatened with deductions on two separate occasions. On one occasion the Respondent threatened to make a deduction from his wages as he had used a deli knife rather than the meat slicer to slice ham. Another deduction was threatened for drinking coffee at his workstation.
At one stage he was shouted at by one of the owners in the presence of a customer and another staff member “I don’t give a shit”. The owner walked away from him laughing in a mocking fashion. This was a deeply upsetting incident for the Complainant.
In July 2018 a disciplinary procedure was initiated against him. He was issued with a formal letter of warning. He was then advised that this letter had been revoked.
He put his grievances in writing to the Respondent. He wrote three times and despite being advised that a process would be instituted they were never replied to or dealt with.
Since May 2018 he felt his job was under threat. He was advised the deli where he worked would be closed from August 2018. He was incredibly anxious about his job security and future employment. He requested information on this and he never received any response. This together with the ongoing conflict with the Respondent took a serious toll on his mental and physical health.
Instead of dealing with his grievances, to his astonishment the Respondent embarked upon a fresh investigation into the incident of July 2018. The Complainant believed that the Respondent’s intention was to terminate his employment. The Complainant submitted that he felt the Respondents no longer intended to be bound by the contract of employment. He submitted that the second investigation was a charade to terminate his employment.
In his last day at work on the 4th October 2018 he raised his grievances with the shop manager. She advised that there were inaccuracies in his grievance. She asked him to put his grievance in writing again. The Complainant asked the manager to confirm that the Respondent was refusing to deal with his grievances. She declined to do so. The manager told him that he was not a chef but just a deli worker. He felt belittled and humiliated.
Later that day while serving a customer he became emotional and started to cry. As he could no longer tolerate the anxiety, stress, uncertainty and repeated humiliation of the situation he left work to attend his GP. |
Findings and Conclusions:
To bring a complaint of Unfair Dismissal there must be a dismissal.
Under Section 1 of the Unfair Dismissals Act 1977 a dismissal is defined as:
“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;
The date of dismissal is defined as:
“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 Act, 1973 , 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 Act, 1973 , 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 provisions of the Minimum Notice and Terms of Employment Act, 1973 , (c) where a contract of employment for a fixed term expires 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), there is a cesser of the purpose, the date of the expiry or cesser;
In cases of ‘constructive dismissal’ notice is not required or taken into account.
In the Complaint form lodged on the 29th November 2018, the Complainant set out the 4th October 2018 as the date the employment ended. He stated “I left work on the 4th October 2018 to attend with my G.P.”.
In Walsh –v- Health Service Executive UD501/2007 the Employment Appeals Tribunal confirmed that the date of dismissal in a constructive dismissal case is the date upon which the Complainant submits his or her resignation.
The Labour Court in Millett –v Shinkwin DEE 4/2004 stated the general rule is as follows:
“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.”
I have read the correspondence from the Complainant to the Respondent. On the 1st of October 2018 the Complainant’s union wrote to the Respondent setting out their issues with regard to the reinvestigation of the disciplinary matter. The next correspondence on the file is an email from the Complainant to the Respondent dated 5th October 2018 which read
Dear [Director of the Respondent ]
I am on sick leave until 11/10/18 Thursday I go Wednesday also blood test I can’t work I will give you the sick leave paper or copy I will call you Wednesday after the blood test Have a nice day.
The sick certificates submitted referred to anxiety and tiredness and in one insomnia. 5 medical certificates were submitted.
I have read the email from Respondent to the Complainant dated 4th December 2018:
“Dear [Complainant],
I hope you are feeling better.
According to our records you have been absent from work since 1st December 2018 when your current sick cert expired. I have received no further communications from you. In particular, we have not received a timely sick certificate covering your absence which is required by your terms and conditions of employment.
It is advisable that you contact me no later than Thursday the 6th December 2018 to discuss the situation.
If you have any queries regarding the contents of this email then it is important that you contact me to discuss them.
I look forward to hearing from you.
Yours sincerely..”
The next correspondence between the parties was a letter from the Complainant’s solicitor dated the 5th of December 2018 setting out that the Complainant’s employment terminated on the 4th of October 2018 and he has not attended at work since that date.
The complaint form lodged with the WRC was received on the 29th of November 2018 at 16.25.
The filing of an unfair dismissal claim prior to the date of dismissal was considered in the High Court in Brady –v- Employment Appeals Tribunal [2015] ELR1 and in Matthews –v- Sandisk International Limited UD 331/2010. In the former case Mr. Justice Barrett stated that a number of issues had to be considered namely that the prescribed time periods are typically intended to thwart the tardy, not punish the prompt.
Termination of contract can be verbally or in writing. However, there is a requirement that the intention to terminate the contract must be clear.
Section 8 of the Unfair Dismissals Act deals with determinations of claims. Section 8 (2) sets out that a claim for redress under this act shall be initiated by giving notice in writing:
a) Within the period of six months beginning of the date of the relevant dismissal.
In this case the Respondent was not notified of the dismissal by the Complainant until the 5th December 2018.
The facts of Brady –v- Employment Appeals Tribunal [2015] ELR1 were that Bohemian Football Club left Mr Brady in no doubt that his employment terminated on December 16, 2011. His lawyers promptly lodged an unfair dismissals notice with the Employment Appeals Tribunal on December 23, 2011, only to be greeted, belatedly, on May 3, 2013, with the contention that Mr Brady's unfair dismissals claim had been premature as it was received by the Employment Appeals Tribunal before the dismissal took effect once an alleged two-week redundancy notice period was taken into account. In that case Mr. Justice Barratt stated obiter Of course there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time period for the purposes of s.8(2).
In this case, the Complainant did not give any indication to the Respondent of his claim of constructive dismissal before he lodged his complaint with the WRC. He left the workplace on the 4th October 2018 and continued to submit sick certificates until the 30th November 2018. He was represented by his Union at that time and later engaged the services of a solicitor.
On the facts of this case, I find that the obiter circumstances envisaged by Mr. Justice Barratt occurred. The Complainant lodged his complaint clearly prematurely before any indication was given to the Respondent of his claim of 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.
The complaint is not well founded. |
Dated: 8th January 2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Premature lodging of claim with the WRC. |