ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021576
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cashier | A Petrol Station |
Representatives | Anne Conlon B.L., instructed by P.G. Cranny & Co. Solicitors | Peninsula Business Services (Ireland) Limited |
Complaints:
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-00028341-001 | 10/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00028341-002 | 10/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00028341-003 | 10/05/2019 |
Date of Adjudication Hearing: 05/12/2019
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
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 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.
Background:
The complainant submits that he was constructively dismissed when his hours were cut, he never received a contract of employment and he was not notified of changes to his employment terms when his hours were cut. The respondent says they had work available for the complainant but he was not always available, he was not issued with a written contract and his hours were not changed by them but by the complainant’s lack of availability. |
Summary of Complainant’s Case:
CA-00028341-001: Unfair Dismissal The complainant submits he had a regular 48 hour working week until March 2017, when it was cut to 36 on his return from annual leave. Because of the reduced availability of work the complainant took a position elsewhere and worked 12/14 hours a week with another employer. In November 2018 he asked his manager for four weeks leave in December 2018, initially he was told that if he took more than 2 weeks leave he would not have a job to return to. He then approached the owner and the leave was granted. On his return from the leave on 3 January 2019 he found that he had not been scheduled to work and was not on the roster for the next three weeks. He had a meeting with the owner and his manager to discuss why he was not on the roster. During the meeting the owner confirmed he had recruited someone else because they didn’t know when the complainant was returning. The complainant said he told them he would be returning on 3 January. The owner also made comments about the quality of his work but confirmed they would give him some work. Following the meeting he was given 12 or 24 hours per week, rather than the 36 hours he was working before he went on leave. The complainant noticed in his first pay slip after this that he was paying emergency tax. He looked into this and found out that P45 was issued to Revenue giving a cessation date of 24 December 2018. He had a meeting with his manager on 17 March and discussed the issuing of the P45. He sought further clarification of his position via email. Then had a meeting with the owner and his manager. He says he was dismissed when his P45 was issued while he was on annual leave and on his return from annual leave was reinstated eventually but given less than 50% of his normal working hours in the period from 3 January 2019 to 1 April 2019. In all these circumstances he says the actions of the respondent were unreasonable and he could not continue to work for them and this amounts to constructive dismissal.
CA-00028341-002: terms of employment The complainant says he was never issued with a contract giving his terms of employment in accordance with the legislation.
CA-00028341-003: terms of employment The complainant says he was not advised of changes to his terms of employment when his hours of work were varied in March 2017 and January 2019. |
Summary of Respondent’s Case:
CA-00028341-001: Unfair Dismissal The respondent says the complainant was working 3 or 4 twelve hour shifts each week. However, during 2017 he refused a number of shifts as he was unavailable. They subsequently found out this was because he was working elsewhere. In early 2018 it became clear he was only willing to work 3 shifts per week. On 19 November 2018 the complainant asked to take 4 weeks leave from 25 November 2018 and confirmed he had already booked tickets. This made it very difficult for the respondent as two other staff members had already booked leave for this period. However, the leave was granted. Before taking the leave he told the respondent that he did not know if or when he would be returning. He was assured by the owner that his job was safe. When the complainant told the respondent that he was on emergency tax and a P45 had been issued he was assured that he was employed by the respondent. They submit the P45 being issued was a clerical error, for which they can offer no explanation. They advised this to the complainant a number of times. At the meeting with the complainant on 1 April 2019 he was told that he had reduced his availability to them because of his other job. The complainant told the respondent he had been unfairly dismissed and asked for “thank you money”. The respondent told him that there was plenty of work available. The complainant then said he could no longer work for the respondent and asked for his P45, a wage cheque and a reference, he confirmed this in an email.
CA-00028341-002: terms of employment The respondent acknowledges they did not issue the complainant with a statement in writing as required by the legislation.
CA-00028341-003: terms of employment The respondent says that complainant’s terms of employment were not altered by a reduction to his working hours in March 2107 and January 2019. Any reduction in hours was caused by a lack of availability from the complainant. |
Findings and Conclusions:
CA-00028341-001 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides: “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,…” As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was 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. It summarised the ‘contract test’ 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 -v- Dunnes Stores [2009] E.L.R. 61: “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.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances. It is clear that the complainant wanted to continue working 4 shifts per week. He had done this most weeks up to March 2017. From then until December 2018 he worked a mixture of 36 and 48 hour weeks. The respondent says any reduction was caused by the complainant’s unavailability to work some shifts because he had another job. The relationship was strained when the complainant asked for 4 weeks leave in November 2018. He gave very little notice at a busy time of year, when 2 others had already booked time off. It is unclear as to whether the complainant said for sure when he would be returning, but his late returns from previous leave put uncertainty in the respondent’s mind. They recruited someone else to fill the gap left by the complainant. He was given no work for 3 weeks on his return and thereafter worked 12 or 24 hours per week. Because of the lack of hours the complainant felt insecure in his employment. The respondent contends that work was available but his other employment made him unavailable for some of the shifts he was offered. In the meetings at the beginning of April 2019 the respondent says that the complainant asked for €30,000 “thank you money” but they said there was plenty of work available. The complainant resigned. It is my conclusion what had been a straightforward working relationship became complicated when the complainant had another part time job. He was regularly available for some shifts but not for others. In these circumstances the respondent scheduled him for certain shifts and not for others. Overall his hours were reduced. The complainant did not go to the respondent and confirm the days when he would be available and the respondent did not ask him. The leave in December strained the relationship, mainly because of the short notice. However, I do not think the relationship was irretrievably broken and if the complainant had confirmed the shifts when he was available I conclude that he would have received more regular shifts. The P45 being issued was unfortunate but was explained by the respondent and they tried to reassure him that work was available. However, from the complainant’s point of view he was not reassured that he would be able to get the number of hours he wanted. I believe it was this that caused him to see his future elsewhere. I am satisfied that he resigned from his employment voluntarily and was not constructively dismissed.
CA-00028341-002 – statement of terms of employment The complainant was not given a statement of his terms of employment in contravention of section 3 of the Terms of Employment (Information) Act 1994.
CA-00028341-003 – notification of changes I conclude that any changes in hours do not fall within section 3 of the Terms of Employment (Information) Act 1994. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act and 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.
CA-00028341-001: for the reasons set out above I find that the complaint taken under the Unfair Dismissals Act is not well founded. CA-00028341-002: for the reasons set above I find that the complaint taken under the Terms of Employment (Information) Act 1994 is well founded and award 4 weeks salary; €470.40. CA-00028341-003: for the reasons set above I find that the complaint taken under the Terms of Employment (Information) Act 1994 is not well founded |
Dated: 9th January 2020
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words: Constructive Dismissal |