ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029914
Flutter Entertainment PLC
Dan Walshe BL
Susan O’Riordan, IBEC
Complaint 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: 07/12/2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This complaint was submitted to the WRC on September 12th 2020, and, in accordance with section 8 of the Unfair Dismissals Acts 1977 - 2015, it was assigned to me by the Director General. Due to restrictions at the WRC because of the Covid-19 pandemic, a hearing was delayed until December 7th 2021. I conducted a remote hearing on that date, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
Ms Stone was represented by Mr Dan Walshe BL, instructed by Mr Derry O’Carroll of Derry O’Carroll and Company, Solicitors. Flutter Entertainment Limited was represented by Ms Susan O’Riordan of IBEC and she was accompanied by Ms Shona Ryan. The employee relations manager, Ms Kim O’Callaghan attended the hearing, with a HR business partner, Mr James Greene. A district manager, Mr Rob Hanrahan, gave evidence in support of the employer’s position that the termination of Ms Stone’s employment was not unfair. Before they gave evidence, the witnesses solemnly affirmed their intention to tell the truth.
While the parties are named in this decision, I will refer to Ms Stone as “the complainant” and to Flutter Entertainment Limited as “the respondent.” I wish to acknowledge the delay issuing this decision and I apologise for the inconvenience that this has caused to the parties.
In January 2015, the complainant commenced working as a part-time retail betting assistant in the respondent’s outlet in Tramore, County Waterford. The following month, she moved to the Ballybricken shop and she remained there until May 2018, when she went to work in the shop in St John’s Park, Waterford. In September 2019, she transferred to the Lisduggan shop and she resigned from there on March 13th 2020. When her employment ended, the complainant was paid an hourly rate of €11.60. She had a contract to work for 24 hours a week, but she generally worked more hours. The complainant claims that she had to resign because of how she was treated by the respondent’s managers. Her complaint therefore, is that she has been constructively dismissed.
Summary of Complainant’s Case:
From the beginning of her employment with the company, the complainant said that she looked for a full-time contract, and, although she frequently worked for more than 24 hours a week, the management refused to give her a 40-hour contract. She said that she thinks that the reason was that one of the respondent’s managers didn’t like her.
Criticism by the Shop Manager in Ballybricken
In a document she submitted to the WRC in advance of the hearing, the complainant described instances in 2016 when she was criticised by the manager of the Ballybricken shop. The manager blamed her because the microwave was dirty. On one occasion, he accused her of being disrespectful to a customer and he claimed that she was talking too much to another customer. She said that he told her that she wouldn’t get any more hours. In December 2016, she said that she worked 61 hours one week, but that the manager still refused to give her a contract for more than 24 hours.
In January 2016, the complainant said that she went out sick because of how she was being treated at work. In accordance with the company’s grievance procedure, she submitted a complaint to the district manager, Mr Hanrahan. She attended a meeting on February 2nd 2016 with Mr Hanrahan and the shop manager and she agreed to return to work. She said that neither her manager or Mr Hanrahan apologised to her for how she was being treated. She asked for a contract for 32 hours a week, but this was refused.
In September 2017, the complainant said that her manager criticised her for wearing navy shoes, saying that her shoes should be black. She said that no other employee was instructed to wear black shoes. On another day that September, she arrived at work according to her roster, but her manager told her that he had got her roster wrong and she had to go home. In February 2018, she had to go home when her manager refused to allow her to cover for an absent employee.
On various dates in 2018, the complainant said that she was criticised for small issues, such as asking for cash for her float. She was told that she was responsible for keeping the kitchen clean, although she said that she rarely used the kitchen.
In May 2018, the complainant said that she had to take a few days off, because she was so upset at her manager’s criticism of her work. She said that he shouted at her and that he behaved “in a bullying manner” and that she was very upset when she got home. She told Mr Hanrahan what happened and, on May 8th 2018, she transferred from Ballybricken to St John’s Park, where she worked for 40 hours that week.
Difficulties in the St John’s Park Shop
While she was assigned to the St John’s Park shop, the complainant said that she generally worked 40 hours a week but that Mr Hanrahan would not agree to giving her a 40-hour contract. She said that she was “single manning” in that store, opening and closing on her own. She listed 28 days in 2019 when she wasn’t able to take a lunch break, or any break.
As the complainant had a contract to work for 24 hours, she said that her holiday entitlement was calculated on the basis of 24 hours, and not on the hours she actually worked.
In July 2019, the complainant was contacted by a person from the HSE who had been given her phone number by the respondent. There had been an outbreak of TB in the pubs and betting shops in Waterford, and the complainant was advised to be tested. She said that she was upset that her employer didn’t tell her about the risk of the TB infection and that they gave her phone number to the HSE without telling her.
In July 2019, the complainant was told to lodge cash from the St John’s Park store in the bank. She complained that this was usually done by a more senior employee but she said that Mr Hanrahan told her to “step up” and do the job.
Move to the Lisduggan Shop
In September 2019, the complainant was moved from St John’s Park to Lisduggan. She described herself as “gutted” about this because she had worked very hard in St John’s Park. She said that the person who replaced her was given a 40-hour contract. The complainant was one of five employees in the Lisduggan shop.
Also, in September 2019, the complainant enrolled for a training course in community service and she asked not to be rostered on Thursdays. She said that she was willing to work on Sundays instead, but her request was not facilitated.
The complainant said that, in February 2020, the district manager, Mr Hanrahan, told that her work wasn’t satisfactory and that her productivity was down. She explained that she wasn’t able to use the new computer software because, unlike her colleagues, she wasn’t sent on a training course. On February 26th 2020, the complainant wasn’t able to start the new computer system when she was opening the shop on her own. Later the same day, there was a problem with how the float money had been transferred to the cash registers, and the complainant said that the staff were unhelpful and that she felt ostracised. A few days later, an employee from another shop came to the Lisduggan shop and did training with the complainant.
On March 13th 2020, Mr Hanrahan was in the Lisduggan shop and the complainant said that he spoke to the other staff, but not to her. She said that, after Mr Hanrahan left, a colleague accused her of “bringing her (the colleague) into disrepute.” The same day, the complainant said that the store manager told her that she hadn’t booked holidays for March 16th, although she is certain that she did. She said that the manager and her colleagues “turned on me” and that she couldn’t take it anymore. She said that she had had enough and that she felt that she could do nothing other than leave. As she was leaving, one of the complainant’s colleagues approached her and put her hand on her. She told this colleague to remove her hand. She felt that she was going to be berated again.
A while later, the complainant said that Mr Hanrahan phoned her and when she told him what had happened, she said that he laughed and said, “leave or stay.” The complainant said that she was extremely upset at this and she had to go to her doctor.
The Complainant’s Case that the Termination of her Employment was Unfair
Setting out the complainant’s case, Mr Walshe referred to the contract test and the reasonableness test which must be established by someone who alleges that they have been constructively dismissed. He provided 13 precedent cases in support of the complainant’s case that her dismissal was based on a significant breach going to the root of her contract, and that the treatment of her by her former employer was so intolerable that it was reasonable for her to resign.
The following cases were submitted as indicative of the implied term in a contract of the maintenance of mutual trust and confidence by an employer:
O’Kane v Dunnes Stores Limited, UD 1547/2003
Byrne v RHM Foods (Ire) Limited, UD 69/1979
Smith v Tobin  ELR 253
O’Reilly v Oxford Ireland Limited, UD 814/1994
The following precedents were cited as examples of the necessity for the provision of a safe place to work:
Maddy v Dufffner Brothers Limited, UD 803/86
Walton & Morse v Dorrington,  IRLR 488
The case of Corcoran v Central Remedial Clinic, UD 7/1978 was cited as an example of a decision that demonstrates the right of an employee to be treated with respect by his or her employer.
These cases focussed on the unreasonable conduct of an employer, which, Mr Walshe argued, if established, “almost automatically” means that the dismissal is unfair.
Cawley v South Wales Electricity Board  IRLR 89,
Gallery v Blarney Woolen Mills Limited [ 1990] ELR 143
Kennedy V Foxfield Inns Limited trading as the Imperial Hotel,  ELR 216
Curran v Graham Anthony & Company Limited, UD 495/2006
The case cited of Walker v Josiah Wedgewood & Sons Limited,  IRLR 105, is not relevant to the complainant’s circumstances, because it is concerned with the issuing of warnings to the claimant.
In the Employment Appeals Tribunal case of Daniel O’Reilly v Acuman Facilities Management Limited, UD 853/2014, the Tribunal concluded that the employer’s use of the disciplinary procedure resulted in isolation, bullying and harassment which impacted on the claimants’ health to the extent that it was reasonable for him to resign.
Summarising the complainant’s case, Mr Walshe said that, for the following reasons, her position became intolerable and she was left with no option but to resign:
When she complained about bullying, she was moved to a different shop;
She was expected to carry out tasks which were not part of her job description;
She was shouted at and subjected to unfair criticism;
She was required to work alone and was unable to take her rest breaks;
She was excluded from training that was offered to other employees;
She was repeatedly refused a contract for additional hours, despite being available to work more hours;
She was made to feel unwelcome, unwanted and undermined;
She was treated differently to other employees.
Evidence of the Complainant
In her evidence, the complainant said that, from the beginning of her employment with the respondent, she had a contract for 24 hours a week. She filled in for staff when they were absent, and, in one week, she said that she worked for 61 hours. She asked for a 40 hour contract, but Mr Hanrahan refused to increase her contracted hours. The complainant said that she always obliged her manager when she got a phone call to do extra hours and she even came into work when she was meant to be on holidays.
From the complainant’s evidence, it is apparent that she had a difficult relationship with the manager of the Ballybricken shop, where she worked from February 2015 until May 2018. The complainant said that she spoke to Mr Hanrahan about her difficulties and that she had one or two meetings with him and her store manager about their problems. It seems that some of the problems affected the other staff in the shop and, referring to Mr Hanrahan, the complainant said that he did his best to resolve their issues. After one incident when, at the end of a day’s trading, the store manager asked the complainant to empty the betting machines and count the money, she said that he told her that she wasn’t doing it right and she counted the money several times. She was out of work after that and she spoke to Mr Hanrahan. A meeting was arranged in the local hotel and the complainant said that she bought Mr Hanrahan and the store manager a cigar. She said that Mr Hanrahan listened to her at the meeting and then she was asked to leave. After that, she moved from Ballybricken to St John’s Park. The complainant said that anyone who started work on low hours got more hours, and when she was moved, she asked for more hours, but her request was refused.
In the store in St John’s Park, the complainant said that she was doing the job of a deputy manager, opening and closing on her own. She said that she got no breaks because she couldn’t leave a younger colleague on their own.
In response to Mr Walshe’s question about the reason for moving from St John’s Park to Lisduggan in September 2019, the complainant said that she doesn’t know why she was moved. In Lisduggan, she said that, at the beginning, everyone was well established in the shop and she felt like “a spare wheel”. She said that she asked if she could be rostered off on Thursdays to do a college course, and, although she was told that she could have that day off, she was put on the rota.
While she was working in the Lisduggan store, the company introduced a new computer system and the complainant said that she was the only employee in the shop who wasn’t sent on a training course. She said that she had to depend on the staff to train her and that she was a nervous wreck. She described a problem she had one morning when she couldn’t transfer money from one cash register to another. The store opened at 10.00am and she had been in from 9.30am. She collected the newspapers, opened the shop and turned off the alarm. She said that, although it was very daunting, she managed to open her own register. When her colleague arrived in work, she told the complainant that there was no money in her register, although he complainant thought she had transferred €530 to her. The complainant tried again, and then it turned out that €1,060 was transferred. She said that she tried for an hour and a half to fix the problem. Her colleagues fixed it when she was at her lunch and afterwards, one of her colleagues described referred to “a very eventful morning.”
That same week, the complainant said that Mr Hanrahan visited her store and called her in to a meeting. He told her that her productivity was down. The complainant said that she explained that she hadn’t been at work for eight days during the timeframe he was referring to. He asked her if she would like some training and she said that she would.
When she was doing her training in the store, the complainant said that she told the trainer what had happened with the money not being transferred to the cash register. She said that no one explained to her how this was to be done. She said that she wanted to “go forward and open the shop with no problem.”
Around the same time, the complainant said that she had booked a week off in March, around St Patrick’s weekend. Although she had booked the holiday well in advance, the manager told her that she couldn’t have the time off because another staff member was taking time off at the same time.
On March 13th 2020, Mr Hanrahan visited the shop and the complainant said that he spoke to all the staff except her. She said that she felt “left out in the cold.” When Mr Hanrahan left, the complainant said that her three colleagues confronted her and one said that, because of what she said to the trainer, she had brought her reputation into disrepute. The colleague said that she had worked in the company for 28 years and that this had never happened before. The complainant said that she was upset and she felt that the manager had been talking to the two other employees about her. She felt that there was a suggestion that she had done something under-handed. She told them, “I’m not having this. I’m standing here on my own and you have all discussed this.” She said it came into her head that the store manager told Mr Hanrahan that her productivity was down. She decided that she was going home.
Afterwards, the complainant said that Mr Hanrahan phoned her and asked her to explain what happened. She said that she felt that the manager had done nothing to stop one of her colleagues accusing her of bringing her reputation into disrepute. At the end of the conversation, she said that Mr Hanrahan responded that she could stay or go. She said that she felt that she had given him too much hassle and that she had become a thorn in his side. She said that a part of her was relieved that she “wouldn’t have to face them people again.”
The complainant described her overall experience working for the respondent as “five years of hell.” She said, “I think I was a nuisance to them.”
Cross-examining of the Complainant
For the respondent, Ms O’Riordan referred to the incident that occurred in the Lisduggan shop on March 13th 2020, when there was an argument between the complainant about a cash incident the previous week. During the argument, the complainant walked out. The shop manager phoned Mr Hanrahan and informed him about what had happened and he phoned the complainant. Mr Hanrahan’s note records that, during his conversation with her, the complainant handed in her notice. In response to Ms O’Riordan, the complainant did not agree with the note where Mr Hanrahan said that he asked the complainant to meet him to discuss what happened. Ms O’Riordan asked the complainant if she agreed that Mr Hanrahan asked her to reflect on her decision. She replied, “he told me bluntly, stay or go.” The complainant also disagreed that she was sent information about the employee assistance programme. She said that the notes in the respondent’s submission and the email that Mr Hanrahan sent her to ask her to reflect on her decision were after the event.
Ms O’Riordan referred to the fact that the complainant used the grievance procedure in 2016, when she had an issue with the store manager in Ballybricken. The complaint did not concede that she knew about the grievance procedure.
The complainant agreed that she was provided with a copy of the company’s Bullying and Harassment and Grievance procedures and she said that she had a telephone call about the procedures with the respondent’s employee relations manager, Ms O’Callaghan on March 25th 2020.
Regarding the issue of hours of work, Ms O’Riordan referred to an email the complainant sent to Mr Hanrahan on May 9th 2018 in which she said that she loved her job and that she didn’t mind what hours she worked. In response to Ms O’Riordan, the complainant said that she had to drive 18 miles to do four hour shifts. She said that she didn’t raise a grievance about this and she said that she “went by what Rob (Mr Hanrahan) said.” In hindsight, she said, “I should have moved on it earlier.”
The complainant denied that her contract provides that she was assigned to any of the respondent’s shops in Waterford and she said that she was told that Ballybricken was her base shop. She agreed that, over the five years that she worked with the company, she didn’t raise a grievance about her hours, or about how she was treated.
When she was asked about redress, in the event that her dismissal is found to be unfair, the complainant said that she put down re-engagement on her complaint form; however, she said that she doesn’t want to go back now. She said that she was out of work on sick leave from March 16th 2020 for one month, and then she became entitled to the Covid pandemic unemployment payment. She said that she had an offer of a job in Ladbrokes, but it turned out to be for eight hours a week, so she only stayed for one day. She did some part-time work on a cleaning job.
Re-direction by Mr Walshe
Mr Walshe referred to the email that Mr Hanrahan sent to the complainant the evening after she left her job on March 13th 2020. The complainant said that she hadn’t got a computer and she read the email for the first time at this hearing. She later agreed with Ms O’Riordan that she had used her mobile phone to send an email to Mr Hanrahan in May 2018. She said that no one advised her to speak to someone in the HR department about the incident that resulted in her leaving her job. She agreed that she went to a meeting in 2016 with Mr Hanrahan and her store manager. She said that, at the time, “Rob was trying to sort things.”
Concluding the Complainant’s Submission
On behalf of the complainant, Mr Walshe said that the issues that led to her resignation were,
Difficulties in her relationship with the manager in the Lisduggan shop;
Not being able to take breaks when she was in St John’s Park;
Not being properly trained on the computer system;
Not being given time off to attend a college course;
Being criticised about her productivity.
Mr Walshe said that the issue that led to the complainant walking out was the decision of her colleagues to wait until they were all together to confront her about what they heard she told the trainer, that one of them hid €500 in the “insert”, which I understand is the shop safe, causing her to be confused and to feel that she wasn’t able to work the computer system. He said that, as a result of this, the complainant’s working life became intolerable and that her trust in her employer was gone.
Summary of Respondent’s Case:
We know from the complainant’s evidence that, on March 13th 2020, there was an argument in the Lisduggan shop where she worked with her manager and two colleagues. The complainant left the shop around 10.00am. At 10.34, the shop manager sent a one-line email to the district manager, Mr Hanrahan, saying,
“Hi, Kathleen has walked out after confronting her with an issue concerning staff members.”
In an email to Mr Hanrahan at 11.41 on the same day, the manager provided the background to the complainant’s departure:
Last week there was a mix-up in money…Kathleen accused “X” and “Y” of opening the insert and putting 500 in when she was on her break. She made the accusation in my presence and I told the girls what she had said. They understandably were very upset and confronted her this morning as it was the first day that we were all working together.
She stormed out still maintaining she was in the right. I advised her not to go but she left.
Soon after he received this email on March 13th, Mr Hanrahan phoned the complainant, and asked her what had happened. She said, “it’s all lies” and she alleged that her three colleagues had “ganged up” on her. She told Mr Hanrahan that she was resigning. Mr Hanrahan asked the complainant if he could meet her and her colleagues to discuss what happened, but she said that she wouldn’t return to the Lisduggan shop. Mr Hanrahan said that she would have to go back to the shop, and that he would mediate between her and the other staff. The complainant reiterated her intention to resign, saying that she would confirm her decision in a text message.
A copy of a text message that Mr Hanrahan sent to the complainant at 13.07 on March 13th was provided in evidence. Mr Hanrahan informed the complainant that, if she wished to resign, she should reply to his text message. He said that he was “happy to speak with everyone individually and collectively, but moving isn’t an option.” The complainant replied,
“Yes Rob I would like to finish with immediate effect and if I been (sic) any bother to you I’m sorry but I feel my mental health is at stake Regards Kathleen.”
Mr Hanrahan sent a note of the incident to the HR business partner for the Waterford shops. He referred to the complainant’s “parting shot” that, as she was leaving, she was assaulted by one of her colleagues. He said that he asked the security team to download and save the CCTV evidence.
Later, on March 13th, Mr Hanrahan sent the complainant an email. He told her that he was following up on their phone call earlier and that he wanted to let her know that “the company is fully supportive of you during this time while you focus on your health.” He sent her a copy of the employee assistance programme, with details of how to get support for stress and mental health problems. He also referred to the complainant’s “serious accusation” of a confrontation with a colleague when she was leaving the shop and he said that he would investigate this at the weekend and let her know his findings. He ended his note by saying that he would give the complainant time to reflect on her decision, and that, if he didn’t hear from her by 1.00pm the following Monday, March 16th, he would accept her text message as confirmation of her resignation.
On Monday, March 23rd the complainant did an exit interview with the HR business partner for the Waterford shops. At the meeting, said that she felt “invisible as an older employee,” and that there was “bullying and harassment at ground level.” She complained about not being given time off to do the course she had booked and she said, “I’m shattered to leave my work the bullies have won.”
Mr Hanrahan contracted the complainant again. He advised her that he spoke to the three staff in the Lisduggan shop and they maintained that what occurred in the shop on Friday, March 13th was a minor issue. They said that the complainant was annoyed about a conversation they had regarding the transfer of the float. They said that, as she was leaving, one of them tried to reason with the complainant to plead with her to stay and talk about what happened. Mr Hanrahan said that the complainant did not agree with this version of events.
On March 24th, the employee relations manager, Ms O’Callaghan, phoned the complainant to discuss the circumstances of her resignation. She wrote to her the same day, telling her that her allegations of bullying were “concerning to the company.” She sent the complainant a copy of the Bullying and Harassment Policy and the Grievance Procedure and she asked her to consider these in light of the issues she mentioned in her exit interview. Ms O’Callaghan asked the complainant to contact her again on Friday, March 27th. The complainant did not reply.
Evidence of the District Manager, Mr Rob Hanrahan
Mr Hanrahan said that he has worked with the company for 22 years and he was appointed as a district manager in 2015. He looks after 26 shops, with 26 managers and around 100 indirect reports reporting to him. Mr Hanrahan said that there are links to HR policies on the computers in the shops and employees who have problems at work can contact someone in the HR department, or they can raise an issue with him directly.
Mr Hanrahan referred to the complainant’s evidence that, in 2016, he had a meeting with her and the shop manager in Ballybricken, after she brought an issue to his attention. He said that she wasn’t getting on with the manager of the shop at the time. After the meeting, Mr Hanrahan said that the complainant gave him and the shop manager a cigar. He said that he thinks that the manager apologised to the complainant and that they agreed to move on.
In 2018, Mr Hanrahan recalled that the complainant had an issue with new equipment in the shops. She complained that she didn’t like how the shop manager spoke to her and she said that she wasn’t going back to that shop. Mr Hanrahan said that the complainant was out sick for a couple of days and that he offered to meet her. He met her in the St John’s Park shop. He said that there was nothing wrong with what the shop manager said to the complainant. The complainant said that she didn’t want to go back to Ballybricken.
Mr Hanrahan agreed with Ms O’Riordan that, if the complainant had an issue, she could raise it with him.
Friday, March 13th 2020 was Gold Cup Day in Cheltenham and, because the shops are busy on that day, employees are not permitted to take holidays. The same applies on St Stephen’s Day and during the Aintree races. Mr Hanrahan said that he called into the Lisduggan shop and he brought cakes for the staff. He moved on to other shops and, as he was travelling, he took a call from the manager in Lisduggan. She told him that Kathleen had left and that she wasn’t coming back. The manager told him that they had a discussion about the issue with the cash register and the float the previous week and they asked the complainant about it and, as a result of the conversation, she walked out.
Mr Hanrahan phoned the complainant and her description of what occurred was that her colleagues were “ganging up on her.” She told him that she had been treated appallingly. He told the complainant that he would contact the HR department. This was the busiest day of the year for the business and Mr Hanrahan phoned his manager. He was advised not to accept the complainant’s resignation. He referred to the email he sent her later that day, and he offered to speak to the staff in Lisduggan about what had made the complainant so upset that she decided to leave.
Mr Hanrahan accepted that the complainant asked him if she could work more hours. He said that she never submitted a formal request about this. He described her as a relief member of staff and he said that she could be assigned to a number of shops in the Waterford area, within reason and depending on the distance of the shops from her home.
Regarding the TB scare in 2019, Mr Hanrahan said that they were contacted by the HSE who informed them that TB had been detected in Waterford city. He said that the HSE asked for contact details of their Waterford employees and they had to go for TB tests.
One of the complainant’s grievances was that she was not trained on the new computer system, known as “Arkle.” Mr Hanrahan said that the training was confined to three people in each shop, and that they were to train their colleagues.
Another grievance the complainant mentioned in her exit interview was the difficulty with taking breaks. Mr Hanrahan referred to the missed breaks policy, where he is required to apply a remedy if an employee can’t take a break on a particular day. If this happens, they must be permitted to take the break the next day. Mr Hanrahan said that the complainant never raised a grievance with him regarding breaks.
Mr Hanrahan expressed himself as surprised to be at this hearing. He said that he had a “decent relationship” with the complainant and that this is reflected in her leaver’s form. He finished his direct evidence saying, “I’m sad to be here. I would have liked to sort things out.”
Cross-examining of the District Manager
Mr Walshe said that there is no reference in the complainant’s contract of employment to her being a relief worker. He said that the complainant felt that she was treated less favourably than others and that she asked to be given a contract for more hours than 24 hours a week. He said that, in reality, she worked more than 24 hours a week.
Mr Hanrahan said that the complainant did not speak to him about working more hours. While she complained about four-hour shifts and having to travel 18 miles to do four hours’ work, even if she had a contract for 40 hours a week, she might be required to work a four-hour shift.
Mr Walsh referred to the email that the complainant sent Mr Hanrahan in May 2018, to follow up on a conversation they had that day. This is the mail in which the complainant said “I don’t mind what hours I work.” Mr Walshe said that this suggested that the complainant asked Mr Hanrahan about the possibility of working more hours. Mr Hanrahan replied that the complainant didn’t ask him for a contract for more hours.
Mr Walshe referred to the problems the complainant had with the shop manager in Ballybricken. Mr Hanrahan said that after they had a meeting in February 2016, he thought that issue was resolved. Contrary to this assumption, Mr Walshe said that she wasn’t happy after the meeting. Mr Hanrahan said that the complainant worked with the same manager for two more years until she moved to St John’s Park. In February 2016, he thought that the issues were resolved and he didn’t hear any more until the complainant contacted him in 2018 and said that she wanted to move from Ballybricken.
When the complainant moved to St John’s Park, Mr Walshe said that she was “single manning” in that shop and unable to take breaks. Mr Hanrahan referred to the procedure for dealing with missed breaks. When she moved from St John’s Park to Lisduggan in September 2019, the person who replaced her was given a 40 hour contract. Mr Hanrahan said that he is almost certain that the hours in St John’s Park were not increased.
In the Lisduggan shop, the complainant had four colleagues, comprised of a manager and a deputy manager and two retail betting assistants, the same job as her. Mr Hanrahan said that he couldn’t explain why the complainant didn’t get the time off she requested to do her college course.
Mr Walshe referred to the complainant’s difficulties handling the new computer system installed in early 2020 and her grievance that she wasn’t sent on the training course with her colleagues. Mr Hanrahan said that he was instructed to send three people from each shop to the training, but he said that, without his knowledge, four people may have gone. He said that training wasn’t necessary to know how to do the basic tasks on the system.
Mr Walshe referred to a conversation that Mr Hanrahan had with the complainant on February 21st 2020. The complainant said that Mr Hanrahan raised an issue about productivity with her. Mr Hanrahan said that his related to a problem with not getting through dockets and uploading them on the cash register. Mr Walshe said that on the day that Mr Hanrahan confronted the complainant about this issue, she hadn’t been at work for eight days. Mr Hanrahan said that this couldn’t be the case, because if the complainant had been absent, her productivity would have been zero. He said that he looks at work done on a day by day basis. Mr Hanrahan agreed that the complainant told him that she needed training and he said that he sent a staff member designated as an IT trainer to spend time in the shop with the complainant to help her to work on the new system.
Referring to the argument in the shop on Friday, March 13th 2020 before the complainant walked out, Mr Walshe suggested that the manager “primed” the two other staff to confront the complainant. For the respondent, Ms O’Riordan clarified that the manager spoke to the complainant about this issue on her own, and not in the company of the two other employees. Mr Walshe said that the complainant felt “ganged up on” and she walked out. Mr Walshe referred to the email sent by the shop manager to Mr Hanrahan on March 13th. In the email, the manager relayed what occurred on March 4th, when the complainant was overhead by one of her colleagues telling that IT trainer that her colleagues had hidden €500 in the safe. The manager described the staff as “raging” about this, because, she said, they would never have done that. After investigating what occurred, Mr Hanrahan sent an explanation of the issue to the HR business partner. Mr Walshe described Mr Hanrahan’s email as “a sanitised version.” Mr Hanrahan said that his note was written after he spoke to the shop manager on the busiest day of the year, and asking her to “give it to me in a nutshell.”
Before he finished his evidence, I asked Mr Hanrahan if he told the complainant to “stay or go” when he spoke to her on the phone on the afternoon of March 13th. Mr Hanrahan denied that his was his response.
Early in the month, he said that he had a conversation with the complainant about how she was getting on on the register. He said that no targets were set and the conversation was casual. He said that some people are very fast at this part of the job. He felt that the complainant should have been getting through more dockets and, at the end of their conversation, he agreed to bring in the IT trainer to provide training.
Concluding Submission – The Reasonableness of the Conduct of the Employer
It is the respondent’s position that they acted reasonably and fairly with regard to the complainant, and in accordance with best practice and their own policies. On the day that the complainant walked out of work, the district manager contacted her and asked her to re-consider her resignation. She was given time to “cool off” and to re-assess her decision. She was offered the option of mediation, to help her to resolve the disagreement that arose with her shop colleagues. The ER manager sent the complainant details of the employee assistance programme and a copy of the grievance and bullying and harassment procedures, which she was encouraged to consider and use to resolve the issues that led her to resign.
The respondent’s position is that the complainant acted unreasonably by resigning, and by not engaging with her employer to resolve her grievances. Following a minor altercation with her colleagues, the complainant walked out of work and then refused to re-engage with managers, despite the attempts they made to resolve matters.
Findings and Conclusions:
The Legal Framework
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…”
As a complaint of constructive dismissal, the burden of proof rests with the complainant to show that her decision to leave her job was reasonable in the circumstances that prevailed at the time. The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, was it reasonable for her to resign on March 13th 2020, and to claim that, because of how she was treated by her employer, no other course of action was open to her?
Context of the Complainant’s Decision to Resign
In the five years that she worked with the respondent, the complainant worked in four outlets in Waterford. She spent her first month in January 2015 in Tramore. From February 2015 until May 2018, she worked in Ballybricken, where she said that she had a difficult relationship with the manager. When, in May 2018, she told the district manager that she wouldn’t go back to Ballybricken, she was moved to St John’s Park, where she said she had to work for a lot of shifts on her own. No explanation was given why she moved to Lisduggan in September 2019, but it seems that she wasn’t happy there from the start, describing herself as “a spare wheel.”
While the complainant described many issues about which she was unhappy from the time she went to the Ballybricken shop, it is evident that she had a constructive relationship with the district manager, Rob Hanrahan, and that she could rely on him to intervene to help her to resolve issues that occasionally arose. In this regard, I refer to the problems that the complainant had with the manager in Ballybricken, and the meeting set up by the district manager to try to sort things out. In May 2018, following the complainant’s decision not to work any longer in Ballybricken, the district manager assigned her to another store. He could have insisted that she remain in Ballybricken, but he did not do so. When she had problems with the computer system, the district manager arranged training for her.
Having listened to the complainant’s evidence, I do not accept that the problems she had in Ballybricken until May 2018 had any influence on her decision to resign in March 2020. It is my view also that her complaints about not being able to take breaks when she was in St John’s Park until September 2019 had no influence on her decision to resign. No evidence was provided that the complainant ever raised the issue of breaks with any manager and I am satisfied that she did not do so.
The complainant argues that a contributory factor leading to her decision to resign was the fact that she was not given a 40 hour contract, or at least, a contract for more than 24 hours. As this seems to have been a problem since she started in the job, I cannot accept that it became so serious an issue on March 13th 2020, that the complainant had no option but to walk out.
The respondent’s side referred to the email of May 9th 2018 that the complainant sent to Mr Hanrahan. It is apparent that this was in the context of her decision not to go back to work in the Ballybricken shop. In her email she said,
“Hi rob regards to our chat yesterday thank you for taking the time to call and see me and listen to my issues I have thought about it and as you know I love my little job with pp I love the company I don’t mind what hours and I want to continue working...(sic)”
This is the full text of the email that the complainant sent on that day. She did not ask for more hours, or a 40 hour week, and it is apparent that she was happy and that she liked working for the respondent. This email also gives some indication of the sense that the complainant had that the district manager was available to support her, as it was sent in the context of an argument that she had recently had with the manager in Ballybricken, and her decision not to go back there.
I have considered all the reasons put forward by the complainant for her decision to leave her job on March 13th 2020. I am satisfied that she walked out because she was confronted by her manager and her two colleagues who were annoyed because she told the trainer that her colleagues hid cash from her on March 4th, when she was trying to balance the float between the safe and the cash in the registers. On that day, when the manager heard the complainant telling the trainer that her colleagues hid €500 from her, she intervened and told the complainant that she was wrong in her assumption that €500 was hidden from her, but she said the complainant was “adamant” that she was right. It is apparent therefore, that, when her colleagues confronted her on March 13th, at the first opportunity when they were all together, this was the second time that the complainant was challenged about this issue.
The Burden of Proof in Constructive Dismissal Cases
As Mr Walshe pointed out at the hearing of this matter, it is settled law that an employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.” These were set out in 1978 by Lord Denning MR in the seminal decision in Western Excavating (ECC) Limited v Sharp. The contract test was summarised 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 discharged from any further performance.”
The reasonableness test also assesses the conduct of the employer, and whether,
“…the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with any longer…If so, the employee is justified in leaving.”
The case law submitted by Ms O’Riordan, Conway v Ulster Bank and McCormack v Dunnes Stores demonstrates that succeeding in a claim of constructive dismissal is a high bar for a complainant. In the case we are considering here, the complainant cannot point to a breach of her contract of employment that shows that her continued employment was untenable. It is my view also that she cannot point to any unreasonableness on the part of her employer that shows that she could not have been expected to remain at work a minute longer.
Arguments between employees at work are normal and an employee not equipped with the mental or emotional stamina to deal with them must be able to rely on a manager for support. The complainant had the support of the district manager who she relied on in the past to help her to resolve problems that she confronted at work. The district manager was available and was willing to mediate with the complainant’s colleagues following the incident on March 13th 2020, but, for reasons of her own, on this last occasion, she declined his support. I do not accept the complainant’s evidence that the district manager responded “stay or go” in the manner she described and I am satisfied that, if she had accepted the support that was offered, she would have been back at work in a matter of days. The decision of the Employment Appeals Tribunal in Grzybek v Keelings Retail shows that, even in circumstances where an employee is suffering from stress, this may not be a sufficient reason to resign.
We know that the second limb of the test of reasonableness, as demonstrated in the McCormack v Dunne’s Stores case (footnote 3), requires that an employee who argues that they resigned because of the conduct of their employer, must demonstrate that they made every effort, by utilising the internal procedures, to have their grievance addressed:
“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/her employers.”
It is apparent from her own evidence, that, for some reason, the complainant felt that she had become a nuisance to the district manager, and she decided that she didn’t want to ask for his help again. As an alternative, she had the support of the ER manager who phoned the complainant and then wrote to her after her exit interview on March 23rd, when she made an allegation of bullying. The ER manager encouraged the complainant to contact her about what prompted her to resign and she provided her with the resources to make a formal complaint. It is regrettable that the complainant elected to use the resources of the WRC to air her grievances, rather than the procedure available to her in her workplace.
Having listened to the complainant’s evidence at the hearing, I find that she has not met the burden of proof that demonstrates that the conduct of her employer was so unacceptable that she had to leave her job. I find also that she has undermined her argument that her employer acted unreasonably by her failure to attempt to resolve her grievances before she submitted a complaint to the WRC. I find therefore, that the complainant’s decision to resign is not compatible with the definition of a constructive dismissal set out at section 1 of the Unfair Dismissals Act.
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.
On this basis of the findings and conclusions set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.
Dated: 18th May 2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Constructive dismissal, grievance procedure
 1978 IRL332