Complainant

Respondent

Parties

Ieva  Purava

Merchandising Services

Representatives

  Self-Represented

Jessica O'Mullane , IBEC

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-00061870-003

29/02/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness for the respondent gave evidence under affirmation, cross examination was facilitated.

The complainant submitted that she was constructively unfairly dismissed when she resigned on 7 February. She stated that responsibility for her role was taken over by another team lead and she was excluded from the workplace. Although she resigned on 7 February the effective date was 20 February 2024.  The complainant submitted that there was a disciplinary meeting that she was given no formal warning about. He stated that HR unit did not want to talk about matters with her.

In evidence she confirmed that she submitted any medical cert covering the period from 12 February to 23 February 2024.  She said that this was a provisional medical cert in that the doctor said to her that she could go back to work anytime (although she confirmed that the cert itself did not state that). She tried to log back in on 16 February but found that she was already locked out of the system. She stated that she was thinking about taking a grievance but that she was locked out of the system before she could take a grievance procedure.

Under cross examination she confirmed that she did not explore the option of a grievance because she was too stressed out to do so.  She also confirmed that she told her colleagues that she was leaving to go to another job.

The respondent submitted that the complainant was not unfairly dismissed constructively or otherwise. The respondent noted that it had a grievance procedure in place and that the complainant had previously availed of the grievance procedure when she had previously resigned, taken a grievance but then retracted her resignation when the grievance was dealt with.

The respondent submitted that her account was suspended due to her resignation, due to the fact that she had given in a sick cert that would cover the remainder of her employment, due to confidentiality and due to data protection issues. It noted that if the complainant wished to take a grievance, she had continued to correspond with staff from the HR unit via the WhatsApp messaging service.

The witness for the respondent said she was not the immediate line manager but was the second line manager for the complainant. She confirmed that the complainant's role did not change during her resignation period but that there was an increase in headcount and that although duties were never removed from the complainant, she did note that additional unit lead personnel were required to undertake the same duties as the complainant, as they were required to provide a 24-hour service.

She confirmed that issues around schedule of meetings outside of the complainants’ working hours were dealt with. Options were given to her to vary her start and finish times in order to attend meetings and also to review recordings of the meetings and come back when her shift began with any queries and questions that she had.

The witness confirmed that the complainant had previously engaged with the grievance policy which was accessible to all staff.  The witness also confirmed that staff were told that the complainant was resigning as she had another job lined up.

In written submissions the respondent noted that the case law to date showed that when a person sought to rely on constructive unfair dismissal, the courts had found that there was a high burden of proof to be discharged by the complainant.  That burden of proof included showing that they had exhausted internal grievance procedures and or that the respondent had done something to void the contract of employment.  The respondent cited a number of cases in support of its position:

Conway v Ulster Bank, UD474/1981

McCormack v Dunnes Stores, UD 1421/2008

Travers v MBNA Ireland Limited, UD720/2006

William Hendrick v Wincor Nixdorf Limited (UD935/2014)

Dismissal is defined in the Act as follows:

“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 respondent noted that in light of this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that:

a)      The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

b)     The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate.

However, the complainant raised neither argument that the contract was breached nor that the employer acted so unreasonably.

The respondent submitted that it is incumbent upon person to exhaust or at the very least substantially utilise a grievance procedure where one exists, before that person can rely on constructive unfair dismissal. In that regard it cited a number of precedent cases:

Conway v Ulster Bank, UD474/1981

“substantially utilised the grievance procedure to attempt to remedy her complaints”

McCormack v Dunnes Stores, UD 1421/2008

“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. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

Travers v MBNA Ireland Limited, UD720/2006

“the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

“in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The respondent submitted that the complainant was also aware of the grievance procedure having availed of it previously. This was confirmed by the complaint. The complainant also confirmed that she did not avail of the grievance procedure before submitting her resignation. She stated that she considered making a grievance but when she returned, or at least tried to return to work, on the February 16, she was already locked out of the system. She stated that therefore she was prohibited from availing of the grievance procedure.

The complainant stated that once she was locked out of the system, she had no way to make a grievance.  However, the respondent noted that the complainant remained in contact with its HR function by way of the WhatsApp messaging service, which was used subsequently to rectify one or two details regarding her outstanding pay.

I also note that the complainant confirmed that she informed her colleagues that she was leaving to pursue an alternative employment.

Having regard to all of the foregoing, I am satisfied that the complainant submitted her resignation without exhausting or even using the grievance procedure of which she was well aware.  Accordingly, I find that she was not unfairly dismissed, constructively or otherwise.

Having regard to all the written and oral submissions made in relation to this complaint, my decision is that the complainant was not unfairly dismissed, constructively or otherwise.

Constructive Unfair Dismissal – did not exhaust all internal avenues of resolution – not unfairly dismissed.