Complainant

Respondent

Parties

Karrin  Breslin

Chantelle Lingerie Limited

Representatives

 Aisling Irish Parker Law Solicitors

Tommy Smyth Tom Smyth & Associates

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-00063736-001

27/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063736-002

27/05/2024

The Complainant was employed as a Sales Consultant/Brand Manager with the Respondent from 5 January 2004 until she resigned her employment in October 2023.  She enjoyed a salary of €34,303.04 per annum.  The Complainant contended that:  

·       she was constructively dismissed

·       she was discriminated against on the prohibited ground of disability, and she was harassed.

The Respondent is an international lingerie brand that operates on a concession basis in a retail outlet in Dublin (hereinafter referred to as the Shop).  The Respondent disputed the complaints. 

General Background

The Complainant outlined that she had worked for the Respondent for in or around 19 years and that during that time she was always a hardworking and diligent employee and that this was reflected in her performance reviews.

She outlined the following sequence of events:

·       That in or around 2021 she began to experience anxiety and low mode, high blood pressure, stomach issues, hiatus hernia, gastritis and IBS as a result of work-related stress.

·       That since 2021 there were staffing issues in her department and a lack of support in the stockroom, and that these issues made her job very overwhelming and physically hard

·       That on 11 October 2021, she wrote to the Respondent outlining these issues and advised the Respondent that she had been doing the late closing shift two to three times a week, as a result of which she was only getting home at 9.30 pm or 10 pm.  She alleged she advised the Respondent that her “mental and physical health” were deteriorating as a result and she asked the Respondent if she could work set hours from 9 am to 5 pm in order to alleviate some of her stress and to facilitate her train home to Wexford.

·       That these issues not only persisted between October 2021 and 31 October 2024, but that they escalated.  She submitted that she outlined her grievances to the Respondent throughout this period in person and by way of phone calls.  She submitted that she also detailed the issues she was experiencing by email to the Respondent on the following dates:

                                i.            14 December 2021

                               ii.            16 June 2022

                              iii.            10 August 2022

                              iv.            7 October 2022

                               v.            18 October 2022

                              vi.            14 March 2023

                             vii.            20 March 2023

                            viii.            1 June 2023

                              ix.            28 June 2023

                              x.            30 June 2023

                             xi.            7 July 2023

·       That in her email of 16 June 2022, she advised the Respondent that the department in “the Shop” was “chronically short staffed…there are 12 staff compared to 17 staff in 2019.  Myself and 1 other girl are the only full timers, we used to have 10 full timers, other girls do 2,3 or 4 days.” The Complainant submitted that she attached a sick certificate to that email and that this was not her first sick certificate as she had previously been certified sick.

·       That in her emails of 10 August 2022, 7 October 2022 and 18 October 2022 she had outlined that her holiday requests were being unreasonably denied, and that she was blocked from accessing the system to submit these requests.

·       That in her emails of 14 March 2023 she had advised the Respondent that she felt as if management in the Shop did not believe that she was sick and that she was abusing her sick pay.  In that email she also noted that her “role and responsibilities as the (Respondent) brand manager in (the Shop) has become very blurred over the last number of years and unfortunately I feel (the Shop) has taken advantage of me to the detriment of my brand and loss of earnings/commission.”  In that email the Complainant also reemphasised the issues regarding staffing and stock room assistants in the Shop and advised the Respondent that the persistence of these issues is “adding anxiety and stress to my life”

·       That in her email of 1 June 2023, she opened by stating that she “believes that [her] illness, symptoms of IBS/anxiety are work related”. She also outlined in some detail the considerable difficulties she was continuing to face in work at that point.  She noted that she “just wanted to do [her] job well and sell stock so that [she] can increase [her] earnings through commission.  But as you can see from all I’ve written above there are major obstacles stopping me from doing a good job and this has been going on for years.  It’s gotten far worse in the last 4 months and definitely having a negative impact on my working life due to a stressful and sometimes toxic work environment.”

·       That in the Respondent’s reply on 1 June 2023, the Respondent stated that “I am hoping you can get to the bottom of your sickness so you feel better.”

·       That in the Complainant’s email to the Respondent on 2 June 2023, she contends that on foot of the foregoing complaints and absences from work, she received different treatment to other employees.  In particular, she contends that she was regularly singled out by management and that she was excessively monitored by security guards when she went to the stock room.  She noted that “(the Shop) are forcing me out due to their behaviour which is impacting me negatively.  I believe I am being overly monitored at work especially over the last few months, or an investigation is being carried out on me, which you and I have not been informed of.  This has come about noticeably since I have been sick and have made complaints to you regarding issues in (the Shop) in previous emails.”

·       That in the Respondent’s reply on 29 June, the Respondent advised the Complainant that “I am awaiting a response from A at (the Shop); once I get it I plan to follow up with her on all of your complaints in writing and get some feedback from (the Shop)… The ones I am now concerned with are the more personal issues that you have outlined in your email this week and June 1…”

·       That in the Complainant’s email to the Respondent on 7 July 2023, the Complainant explained that she was “not improving at all, in fact [she was] getting worse. And [her] mental health was suffering”.  The Complainant further advised the Respondent that she was “really burnt out and exhausted from all that’s gone on over the last couple of years at work”.

·       That in the Complainant’s email of 31 October 2023 she resigned.  She noted that she had been on certified sick leave for the intervening period.

The Complainant confirmed her periods of certified sick leave as follows:

·       3 January 2022 to 12 January 2022

·       2 June 2022 to 4 June 2022

·       27 July 2022 to 28 July 2022

·       15 February 2023 to 6 March 2023

·       29 May 2023 to 5 June 2023

·       26 June 2023 to 10 August 2023

·       2 October 2023 to 3 December 2023

The Complainant submitted that her absence from work was due to work related stress which also manifested physically in the form of a hiatus hernia, gastritis and abdominal issues.  The Complainant submitted that this position had been affirmed by her GP in a medical certificate dated 10 July 2023.  She submitted that the foregoing had a massive impact on her wellbeing and that she strongly believed that the Respondent had failed in it’s duty to safeguard same. 

CA-00063736-001 (Unfair Dismissal)

In her complaint form, the Complainant contended that she had no option but to resign due to unacceptable working conditions and the conduct of her employer/others at work and discriminatory treatment.  She contended that she was harassed during the course of her employment and discriminated against on grounds of disability.  The Complainant stated that she had reported these matters to management over an extended period of time, verbally and in writing and extensively set out her grievances which included, inter alia, unacceptable working conditions, lack of support in her role, excessive and inappropriate monitoring, surveillance and harassment and bullying from others at work.  She submitted that management failed and/or neglected to take adequate action to address the situation leaving her with no option but to resign.

Based on the foregoing and on the general background outlined above the Complainant submitted that she strongly contended that she had been constructively dismissed contrary to Section 8 of the Act.

The Law

The Complainant drew attention to Section 1 of the Unfair Dismissal Act (the Act) which defines ‘dismissal’ for the purposes of the Act as follows:

“(a) the termination be 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 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,…”

The Complainant submitted that the Act places a high burden on a Complainant in a constructive dismissal case and that in order to succeed in such a complaint, the Complainant must establish that because of the conduct of the employer she was entitled to terminate her employment, or it was reasonable for her to do so. 

The Complainant cited the case of Berber v Dunnes Sores (Unreported, High Court, 24th October 2006), where Finnegan J stated:

“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 as such that the employee cannot be expected to put up with it.”

The Complainant also noted the case of Murray v Rockavill Shellfish Ltd UD1832/2010 where it was affirmed that

“It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness.  An employee must act reasonably in terminating his contract of employment.  Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored.  An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning.”

The Complainant noted that a long line of decisions of the WRC, the Labour Court, and the EAT (prior to 2015), had all established that the conduct of the employer which would justify an employee terminating the contract of employment included a breach of the contract of employment by the employer which goes to the root of that contract and circumstances where the employer’s unreasonable behaviour was such that the employee could not reasonably be expected to remain in employment.

The Complainant further noted that it was also established in decisions of the WRC that a Complainant who contended that they had been constructively dismissed must demonstrate that they have acted reasonably in the circumstances by, for example, availing of the employer’s grievance procedure in order to allow the employer the opportunity to rectify the problem before they felt compelled to resign.  The Complainant cited a number of precedents relating to the onus on the employee to provide the employer with a reasonable opportunity to address matters through the Grievance Procedure and in particular noted the case of Mr. O v An Employer (no.2) [2005] 16 E.L.R. 132 where the Court stated:

“The court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.  However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give formal notice of a grievance will not be fatal.”

The Complainant submitted that each complaint of constructive dismissal is considered on its own merits and on the basis of the circumstances existing in that case but, as a general principle, the WRC and Labour Court have clarified that these are the matters most relevant to consideration of complaints of the nature before this forum.  The Complainant contended that her own set of facts fulfil the requirements to satisfy a claim of unfair dismissal by way of constructive dismissal.

She submitted that the first test that arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his/her position, often referred to as the “contract test”.  The Complainant noted that this requires an employer to be “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 further performance”.  In this regard it was the position of the Complainant that the Respondent failed to provide her with a safe place of work.

The Complainant referenced various sections of the Safety, Health & Welfare at Work Act and cited case law in relation to the obligation of the employer to provide a safe place to work.  In particular the Complainant drew attention to the case of Catherine Hurley-v- An Post [2017] IEHC 568, where the decision stated:

“The Court is satisfied that there is a common law duty on an employer to take all reasonable precautions for the safety of its employees and not to expose them to a foreseeable risk of injury.”

The Complainant contended that the principles of the above decision are applicable to the instant case.

In relation to the reasonableness test the Complainant noted that this may be relied upon as either an alternative to the contract test or in combination with that test.  The Complainant noted that the question for the WRC to decide was whether, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for them to terminate their contract of employment. 

The Complainant noted that where the contract test has not been significantly advanced or satisfied, the WRC may look at the “reasonableness” test and examine whether the employer conducted himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving.

The Complainant referred to the “Bond of Trust” between the employee and the employer and cited the UK case of Malik and Mahmud v Bank of Credit and Commerce International SA [1997} UKHL23, which confirmed the existence of the implied term of mutual trust and confidence in all contracts of employment.  The Complainant noted that the House of Lords unanimously held that the term of mutual trust and confidence would be implied into the contact as a necessary incident of the employment relation.  In this respect the Complainant contended that the Respondent was aware of the mental health struggles she encountered but did nothing to alleviate the pressure exerted upon her.

The Complainant noted that the requirement to exhaust the internal formal procedures was “not a fixed or universally applicable rule” and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal.  In this regard the Complainant cited the case of an Office Administrator v A Manufacturer ADJ-00026208, where it was held that “in the absence of a clear grievance procedure, and given the breakdown of trust and confidence between the parties, there was no need to exhaust the grievance procedure:

“In the context of the issue involved the use of a grievance procedure was both pointless and also unclear if indeed there was one in existence, based on the contractual evidence of the employee.  Overall, I find that the Complainant, in the uncontested evidence provided, had significant grounds to resign, without invoking a grievance procedure, due to the Bond of Trust being irrevocably broken down between the parties and accordingly I find the Complainant to be unfairly dismissed.”

The Complainant cited further case law relevant to this position and submitted that the Complainant repeatedly brought her issues to the attention of the Respondent but was completely ignored.  In addition, the Complainant submitted that she did exhaust the grievance procedure as best she could, but to no avail.

In conclusion, the Complainant asserted that her own set of facts fulfil the criteria for establishing a claim of unfair dismissal by way of constructive dismissal.  She submitted that the Respondent’s actions, or lack thereof, were so severe that they created an unsafe work environment, amounting to a repudiatory breach of the Contract of Employment which ultimately resulted in her dismissal.

Moreover, she submitted the Respondent conducted their affairs so unreasonably in response to her repeated efforts to seek assistance and exhaustion of the only grievance procedures available to her, that she could not fairly have been expected to put up with it any longer.

Complainant Evidence at hearing 7 October 2024

At the hearing the Complainant gave evidence that was consistent with her submission and her complaint form.

She stated that there were often staffing challenges in the retail sector throughout her employment but that matters were noticeably worse upon return to work post the Covid Pandemic.  She confirmed that pre Covid staffing levels would have been 19/20 staff, and that of those, half were full time workers.  She further confirmed that post Covid there were only 8/9 staff and that of those 3 or 4 were part-time.

The Complainant confirmed that she emailed the Managing Director (hereinafter referred to as the MD) regarding her concerns and that the MD was the only person she could contact.  She stated that as far as she was aware the MD was the top person with the Respondent and that there was no manager above her.  She confirmed that it was always the MD that she contacted about issues of concern.  She further confirmed that when she had difficulty regarding holiday arrangements the MD made contact with the Shop and the matter was resolved.  In response to the Respondent Representative the Complainant confirmed that she believed the reason she was not given the leave initially was to “make everything for me as difficult as possible”.  She confirmed that after 28th June email to the MD she believed the Shop she started to notice things and that she believed things were being done “to push her out”.

The Complainant Representative noted paragraph 19 in the contract indicated that grievances could be brought to the attention of the Consultant Supervisor and asked why she had not raised her concerns accordingly.  The Complainant confirmed that despite what was written in the contract that there was no Consultant Supervisor in place.  The Complainant Representative noted that the contract also provided for referral of grievances to the General Manager and asked who that was, to which the Complainant replied that it was the MD.

The Complainant confirmed that on 7 July she ceased working due to illness but that the MD did nothing to help her.  She confirmed that eventually the MD did make contact with the Shop in a last ditched effort to check what was going on.  The Complainant stated that the MD knew she should have acted sooner but that by the time she did it was too little too late.  She confirmed that there was no one else she could have spoke to and she confirmed that one of the significant issues was that she was being followed to the bathroom and staff areas by Shop management and security.  She stated that this behaviour was clearly aimed at intimidating her.  She advised that she went to the bathroom frequently due to her IBS symptoms.

In response to a request for clarification from this Adjudication Officer the Complainant confirmed that she had no day-to-day reporting relationship with anyone in the Shop but that she did work across the wider Shop lingerie business.

Under cross examination the Complainant confirmed that she had no significant concerns prior to 2021.  She stated that initially there was an area consultant in place to whom she could report but that for the past 7/8 years the only reporting arrangement had been to the MD.  She stated that a person (L) in the Shop was responsible for the rosters and that, in general this had worked well.

The Complainant confirmed that eventually when the store reopened after Covid she had moved from Skerries, Dublin to Wexford.  She confirmed that the travel times arising resulted in a change of train journey time from 15/20 to 35/45 minutes.   She confirmed that she found it challenging to have 2/3 late shifts per week and that this was due to the staff shortages.  She accepted that following referral of the matter to the MD she had moved to only one late shift per week, but she stated that she had to fight the battle with the Shop herself.   The Complainant sis accept that the MD had intervened with the Shop to clarify the Respondent requirements for medical certification for a single day of sickness absence.  She stated that the MD did engage and get results on the minor issues but did not on the big issues.  The Respondent Representative put it to the Complainant that the MD had dealt with the issue regarding the medical cert but that some of the issues raised were beyonf her control.  The Complainant responded that the MD was slow to react.

The Complainant confirmed that the retail environment had significantly changed after Covid, that the Shop was much busier, with catch up work being done.  She confirmed that there was “non-stop fittings” and that in addition there were added complications arising from Brexit due to shortages of certain items and the Shop was selling other brands.

In response to a number of queries from the Respondent Representative the Complainant confirmed that she had left the union approximately 3 years prior to her resignation.  She stated that the issues she was raising relating to staffing made it clear that while staff were being replaced in other departments they were not replaced in the area in which she worked.

CA-00063736-002 (Employment Equality Act)

Preliminary Issue – Time Limit

The Applicable Law

The Complainant drew attention to the following sections of the Employment Equality Acts 1998 – 2015 (as amended) as relevant: -

EEA S.77(5)(a) states : “Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6)(b) does allow the extension of the time limit for making a claim from 6 months to 12 months, however a claimant must show that there is “reasonable cause” for the delay.

The Complainant noted that what constituted “reasonable cause” was considered by the Labour Court in the case of Cementation Skanska v Carroll, DWT 0338. The Court set out the test for ‘reasonable cause’ as follows: “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

The Complainant submitted that she must provide an explanation for the delay, this explanation must be reasonable, an objective standard must be applied, there must be a causal link between the circumstances and the delay and that she must show if the circumstances were not present, she would have submitted a claim.

The Complainant submitted that the reasons she did not submit the dispute within the six-month statutory timeframe are as follows:

The Complainant was on certified sick leave until December 2023 and was in receipt of medically certified Illness Benefit until March 2024. Consequently, she was acting under a disability until that time and was unable to deal with her complaint until then. This is supported by the fact that she only sought legal advice in February / March 2024 in relation to her employer’s conduct.

The Complainant did not recognise that the Respondent’s unreasonable conduct constituted discrimination and/or victimisation until she obtained legal advice in 2024 and as such, she was unable to lodge a claim within the six-month time period allowed. It is submitted that had the Complainant been aware that the Respondent’s conduct amounted to discrimination and/or victimisation, she would have lodged a dispute within the statutory timeframe. 

In conclusion and having regard to the above, the Complainant submitted that it was her contention that she has provided a reasonable explanation for the delay in lodging her complaint to the WRC and that as such, the statutory timeframe should be extended to allow the admission of her complaint under Section 77 of the Employment Equality Act, 1998.

The Complainant, based on the sequence of events giving rise to this complaint, contended that the Respondent was vicariously liable for the discrimination and victimisation she faced during the course of her employment contrary to section 6 of the Act.

The Substantive Complaint

In her complaint form, the Complainant contended that she suffered from stress related illness which also manifested in physical symptoms which she described.  She contended that the Respondent failed and/or neglected to provide reasonable accommodation and that she was harassed on account of her illness by others in the workplace.  She alleged that the discriminatory treatment, which included inter alia, excessive and inappropriate monitoring, surveillance and revoking access to staff online platform used for recording of details of employment, left her with no option but to resign from her employment.

In her submission, in addition to the sequence of events outlined by the Complainant above, she drew attention to Section 6 of the Act which sets out that it is unlawful to discriminate on nine grounds among which is listed “disability”.

She also cited Section 2 of the Act which defines disability as follows:

“a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

c)the malfunction, malformation or disfigurement of a part of a person’s body,

d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.”

The Complainant noted that discrimination is defined in Section 6 of the Act as occurring where a person is treated less favourably than another is, has been or would be treated on any of the specified grounds.  She noted that the types of claims which can be brought under the Act can be categorised as follows:

        i.            Direct discrimination

       ii.            Indirect discrimination

     iii.            Equal pay claim

     iv.            Harassment

       v.            Victimisation

The Complainant contended that she was harassed, victimised and discriminated against on the basis of her disability.

The Complainant cited the case of Gillespie v Northern Health and Social Services Board  C-342/93 where the ECJ stated “it is well settled that discrimination involves the application of different rules to comparable situations, or the application of the same rule to different situations” and she noted that Section 8 of the Act provides that an employer shall not discriminate against an employee in relation to access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading, or classification of posts.

The Complainant drew attention to Section 15(1) of the Act which provides that:

“Anything done by a person in the course of his or her employment shall, in any proceedings under this Act, be treated for the purpose of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”

Additionally, the Complainant cited Section 16(3) and 16 (4) in relation to the requirement to provide reasonable accommodation for a person with a disability.

The Complainant noted that Section 6 of the Act sets out that in order to establish direct discrimination, it is necessary to prove that but for the fact that the individual falls within one of the discriminatory grounds, she would have been treated differently.  In this respect, the Complainant contended that but for her disability which required her to take sick leave, she would not have been treated differently to Ms. RR.

The Complainant further noted that once she had identified an appropriate comparator, she must then discharge the burden of proof by showing that the difference in treatment was due to discrimination on one of the discriminatory grounds.  The Complainant acknowledged that ordinarily the burden of proof lies with the party making the allegation, however, she drew attention to cases under the 1998 Act, where she submitted there is a specific rule shifting the burden of proof to the Respondent once the Complainant has proved a prima facie case.  In this regard the Complainant noted the case of Dublin Corporation v Gibney’s Determination No EE5/1986, where a prima facie case was defined as:

“evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination probably occurred.”

The Complainant also cited the case of the Southern Health Board v Mitchell AEE/99/8, where the Labour Court explained that the onus on the Complainant in seeking to establish a prima facie case is to:-

“prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.  It is only if those primary facts are regarded…as being of significance to raise a presumption of discrimination that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

The Complainant submitted that it was her strong contention that but for her illness which required her to take leave from work, she would not have been excessively and inappropriately monitored in work, she would not have been followed and inappropriately surveilled by security, she would not have been obstructed from accessing the staff online employment platform, her requests for holidays would not have been rejected, her ability to earn commission would not have been hindered, and she would not have been constructively dismissed from her employment.

Victimisation

The Complainant noted that Section 74(2) and 77 of the Act provide that complaints may be made where a person has suffered adverse treatment for having in good faith, sought redress under equality legislation, opposed unlawful discrimination, given evidence in an equality case or indicated an intention to do so.  She cited the case C-185/97 of Coote v Granada Hospitality Ltd. [1998] E.C.R. 1-5199 where it was proposed that the concept of “victimisation” should be

“construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act.”

The Complainant further cited the case of Murphy v Iarnrod Eireann [2010] E.L.R. 143, where the Equality Tribunal awarded €63,000 in compensation for victimisation. She noted that in that case the finding of victimisation included that the Respondent accessed the claimant’s email unreasonably and that the Respondent interacted with the Claimant in an unnecessary aggressive manner and that the Claimant was excluded from social events.

The Complainant submitted that it was her contention that the Respondent was vicariously liable for the adverse treatment she faced, in response to her having in good faith opposed the unlawful discrimination.  Furthermore, she asserted that had it not been for her disability requiring her to take leave from work, she would not have been subjected to discrimination by the staff of the Shop.  She submitted that the victimisation she experienced was a direct response to her opposition to such behaviour, for which she submitted the Respondent was vicariously liable.

General Background

The Respondent outlined the following by way of general background to the issues:

·       The Complainant commenced employment on 5 January 2004 as a Shop Consultant. She received a basic salary plus 1.25% commission on sales.

·       She was employed to sell the Respondent products in the lingerie department of the Shop but she would also be asked to support selling other lingerie brands in the department.  She received a separate commission from the Shop for these sales.

·       She received a contract of employment which provided a grievance procedure to allow her to raise matters formally and to have a trade union representative or colleague present at all relevant meetings.

·       The Complainant never raised a formal grievance despite the procedures and representation available to her.

·       The Respondent wished to make clear that it had no issue with the Complainant or her work.  The Managing Director (MD) expressed her disappointment that the Complainant saw fit to pursue the instant matters, and notwithstanding the Respondent requirement to defend itself, the Respondent was clear that this did not change the appreciation it had for the hard work of the Complainant during her time of employment.

·       At the time of the Complainant’s resignation email in October 2023, the MD offered the Complainant work when she felt better.

·       In March 2024, prior to the Complainant lodging her complaint with the WRC, the MD emailed the Complainant asking if she wanted to return as the Respondent had not replaced her in the interim.

·       The MD was based out of London with responsibilities for the brand across UK and Ireland and she travelled to Dublin periodically.

·       Mr. R F was a Sales Agent contracted to the Respondent.  He and the MD regularly discussed matters relating to the brand, including feedback from the Complainant at the Shop site.  Any commercial matters, ideas etc were reported to him for consideration and actioned where appropriate.

·       No issues of concern were raised for the first 17 years of this employment relationship and the issues raised in this case commenced in 2021, soon after the reopening after Covid.

Timeline and matters of note

October 2021

The Respondent noted that the Complainant emailed the MD on 11 October and referenced a phone call the previous week.  The Respondent noted that the Complainant mentioned in that email that the Union was making representations on behalf of other colleagues in the department and that a Union meeting had taken place.  The Respondent drew attention to the fact that the staff of the department had access to Union support.

The Respondent submitted that at that time the retail sector was still recovering from the closures and extended periods of lay-off during the Covid Pandemic.  It submitted that the Shop reopened in May 2021 and that during the Pandemic the Complainant had moved out of Dublin to the southeast of the country.  The Respondent submitted that the Complainant did not return to Dublin, but instead chose to commute via train from Wexford.

The Respondent further submitted that in October, the roster returned to pre-Covid norms and the Complainant asked for preferential hours and to work only from 9.00 am to 5.30 pm. The Respondent noted that this was not a request that could be granted given the opening hours of the Shop and the need for a fair departmental roster.

The MD did, however engage with the person responsible for the roster in the Shop and agreed an accommodation that the Complainant could leave early to support her getting an earlier train home.  She confirmed this arrangement to the Complainant via WhatsApp.  The Respondent submitted that no formal grievance was raised directly by the Complainant or via her trade union and there were no further issues raised until 8 months later.

June 2022

The Complainant was absent from work on 2nd, 3rd and 4th June due to medical illness, however, she did not submit a medical certificate for this absence until she attached same to an email of 14 June.

The Respondent submitted that in that email the Complainant did indeed allege the department was understaffed in the context of sales being lost as customers were leaving without being served.  There was no suggestion that the Complainant was being asked to work additional hours and the substance of the email was understood to be the Complainant reporting a commercial point and not a personal grievance.  The Respondent noted that no formal grievance was raised directly by the Complainant or via her trade union.

The Respondent further noted that it was another 9 months (March 2023) before the Complainant, in her own submission made reference to general departmental concerns.

Annual Leave Requests – August – October 2022

The Respondent submitted that the MD accepted that there were queries regarding the administration of annual leave and outlined that in general the Complainant filled in a form requesting leave and sent it to the MD.  The Respondent further submitted that from 2015/16 the Shop did use Core HR and the Complainant was registered on this.  The Respondent noted that the Complainant alleged that she was later denied access to this app as an act of discrimination.  The Respondent advised that the Shop rejected that she had been denied access and the Respondent noted that no evidence had been provided by the Complainant to support that allegation and further noted that the Complainant had referenced difficulty with the app in 2022, long before any reference to a disability.

The Respondent submitted that on 10 August the Complainant emailed regarding dates she wanted to take as leave from 16 to 20 September.  The MD engaged with the Shop and confirmed that the Complainant would be on leave.  The Shop confirmed this, and the Complainant took her leave as requested.  The Complainant then raised concerns

about a Shop policy not to grant leave after 14 November.  The Respondent noted that this was not uncommon in the retail sector during the critical Christmas season.

The MD emailed a manager in the Shop twice on the Complainant’s behalf and was of the opinion that the Complainant later sorted the matter directly with that manager.  The Respondent noted that after that period there were no further concerns regarding annual leave and that no formal grievance was ever raised either directly by the Complainant or via her trade union.  The Respondent noted that there were no further issues of note until March 2023.

March 2023

The Respondent submitted that the Complainant was absent on certified medical leave from 15 February to 6 March 2023 and that the certificate merely described the cause of the absence as “medical illness.”  The Complainant did advise the MD that the absence related to blood pressure and medication she was taking for that issue.

On 3 March the Complainant emailed the MD attaching that certificate and asked the MD to email the Shop about her working hours.  The Complainant had requested to “stick to a rolling rota.”  The MD did so and confirmed this to the Complainant. She had previously emailed in relation to this matter in February.  The Respondent noted that the Complainant already had accommodations provided to her in that she finished early to get her train and only did one closing shift per week.

On 14 March the Complainant called in sick and informed the MD that it was due to medication she was taking.  The Respondent accepted that the staff member of the Shop who prepared the rosters had emailed the MD for a call.  The Complainant also contacted the MD after she had a call with the staff member from the Shop. The Respondent acknowledged that that staff member did request a medical certificate despite it being only a single day of absence.  The MD did try to contact the Shop and confirmed this to the Complainant by email.  Ultimately, the MD confirmed to that staff member that, irrespective of the Shop policy, the Respondent employees were not required to provide a certificate for one day and this was accepted.

The Respondent submitted that after the Complainant returned to work, she emailed on 20 March and that this email appeared to be an exchange regarding commercial and operational stock matters and was treated accordingly.  No formal grievance was raised directly by the Complainant or via her trade union.

May 2023

On 3 May the MD was in Dublin, and as per normal she held a meeting with the Complainant at which Mr. F was also present.  At that meeting the Complainant did raise concern that booking holidays had been difficult during 2022, however no other HR issues were raised.

On 12 May the Complainant was absent for a day and she informed the MD in a follow up email on 17 May that this was due to menopausal symptoms.  No medical certificate was requested by the shop.

On 29 May the Complainant was absent from work and on 30 May she emailed the MD enquiring how many sick days she had remaining.  The Complainant had a sick leave entitlement of 20 days and the MD advised her via email that if she was absent on 31 May she would have used 17 of those 20 days.

On 31 May the Complainant and the MD had a phone call which resulted in an exchange of emails the following day.  The Complainant subsequently sent in a medical certificate which was for “irritable bowel stress related”.  The MD passed it and operational issues raised by the Complainant to Mr. F.

June 2023

On 1 June emails were exchanged between the Complainant and the MD regarding the Complainant’s frustration with certain work and commercial matters based on a phone conversation of the previous day.

On 5 June the Complainant returned to work and made contact regarding some stock issues on 6 June

On 25 June the Complainant left work and ultimately never returned.  On 26 June the Complainant obtained a medical certificate for work related stress.

On 27 June the MD had a phone call with the Complainant who alleged that she was being monitored at work, that she was going to seek legal advice and that she had requested CCTV footage from the Shop.  The MD immediately contacted HR at the Shop given that the medical certificate indicated work related stress and arranged a call to discuss the Complainant’s allegations.

On 28 June the Complainant set out her concerns in an email.  The Respondent submitted that that they were not the type of detailed allegations that allow an employer to formally investigate other employees.  Nonetheless, the MD continued to raise the matter with HR in the Shop.

On 29 June the MD advised the Complainant that her absence would be paid, despite her 20 days sick pay being used up and let her know that her allegations had been relayed to HR in the Shop.  The Complainant responded and expressed appreciation for the MD’s actions.

On 30 June the MD received an email from the Shop which stated that the Complainant was not being monitored or investigated. The Complainant was also advised that the EAP was available to her and that when she was well again the parties could sit down to discuss and all concern that she might have.

The Complainant never returned to work and remained on medical leave until her resignation.  The Respondent submitted that despite being a member of a trade union and despite having stated that she would seek legal advice she chose not to engage any further in relation to any allegations or grievances.

July 2023 onwards

On 7 July the Complainant advised that she won’t be returning to work at the end of the current medical certificate, and she submitted a new certificate covering from 10 July to 10 August indicating “work related stress IBS”.

On 11 July the MD again reminded the Complainant that once she returned to work that a follow up meeting would be arranged with her and HR in the Shop and that any concerns she had would be reviewed.

On 1 August the MD emailed the Complainant and by return was advised that she wasn’t well enough to return to work and that her GP had signed her off until 1 October.  Subsequently she provided a medical certificate from 7 August to 1 October for “a medical condition”.

On 5 September the Complainant gave an update on her health and emails were exchanged.  On 14 September the Complainant emailed again and referenced a timeframe for a temporary replacement.  The Respondent submitted that this indicated that at that time it remined her intention to return to work.

A further medical certificate was submitted from 2 October to 3 December for a medical condition.

On 31 October the Complainant resigned her position with effect from 4 December.  The MD responded and made clear that if the Complainant changed her mind to let her know.

In November the parties exchanged emails regarding commission.

In March 2024 the MD emailed the Complainant querying if she would return to work.  The Respondent noted that this was after the Complainant had most recently visited her solicitor and further noted that even at that stage the Respondent was open to engagement with the Complainant.

The Respondent submitted that on 12 June the WRC wrote to the Respondent regarding claims lodged on 27 May, just under the 6 month mark after her resignation took effect.

CA-00063736-001 (Unfair Dismissals Act)

In its submission the Respondent noted that the claim under the Unfair Dismissals Act related to a claim for constructive dismissal and submitted that the Complainant resigned with a pleasant resignation email which took effect from 4 December 2023.  The Respondent further submitted that she did so knowing that it was already arranged that a meeting to discuss any grievances would be set up had she returned.

The Respondent submitted that there were clearly internal avenues the Complainant could have exhausted, that she had trade union advice available to her throughout her employment and she had a grievance procedure set down in her contract of employment.  The Respondent noted that the Complainant had stated that she was seeking legal advice in June 2023.

The Law

The Respondent referred to Section 1 of the Unfair Dismissals Act, 1977 and the definition of constructive dismissal contained therein as follows:

“the termination by the employee of his contract of employment with his employer, without 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.”

The Respondent cited the case of Berber v Dunnes Stores [2009] 20ELR, where the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

The Respondent also cited the case of Western Excavating (ECC) Ltd. V Sharp (1978) IRL 332 where the Court stated that,

“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, the employee is entitled to treat himself as discharges from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.”

In addition, the Respondent cited the case of A Former Employee-v- A Building Supply Company ADJ-00022607, where the test applied was summarised as follows,

“…the correct approach to be taken by an adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

The Respondent submitted that the instant complaint did not pass either the ‘Contract’ test or the ‘Reasonableness’ test.

The Respondent noted that in relation to loss of earnings the Complainant remained unwell and unable to obtain work until March 2024, that she was offered her position back by the Respondent at that time and that she obtained new employment in May 2024.

The MD evidence at hearing 7 October 2024 (under oath)

The MD confirmed that she had lived and worked in the UK for 30 years and that in her current role she was responsible for the business in the UK and Ireland.  She stated that she was disappointed to be in the WRC as she had never before been brought to an employment tribunal, she believed she had a good working relationship with the Complainant and she considered the Complainant to have been a very good worker.

She advised that the Respondent was a wholesaler and that the Shop was their customer.  She confirmed that the Shop owned the stock, the store and the space within the store.  She further confirmed that the Respondent had a contract with an agent who was in charge of sales for Ireland.  She stated that the Complainant, the agent and the staff of the Shop had to work together as a team but ultimately the Complainant was an employee of the Respondent.

The MD advised that there were no historical problems before 2021.  She advised that Covid had been a very difficult time for the retail sector, that the Shop had closed, that sales had been decimated and that the Shop and the Respondent had been forced to furlough staff.  She advised that the Shop had reopened in May 2021 on a full-time basis and that the Complainant had been anxious to get back to work.  She further advised that she was aware that the Complainant had changed address during Covid, resulting in a longer commute.  She referred to the email received in October 2021 and advised that she referred it to the agent as she viewed it as relating to operational issues.  She stated that she had resolved a number of issues for the Complainant including issues relating to annual leave requests and shift arrangements.  She advised that while she had not been able to facilitate a total change of shift arrangement she had secured earlier finishes for the Complainant.  She advised that following Covid there were issues with stock and stated that the Shop had difficulty balancing demand and supply. She also noted that due to a cyber-attack in December 2021 it was not possible to deliver stock until end of February and she noted that Brexit posed further challenges.

The MD confirmed that the Complainant had difficulty in relation to leave arrangements in August and that she was planning to take holidays in September.  She confirmed that she approved the leave and took a “let’s see” approach in relation to the Shop and any objections that might be raised.  She confirmed that there were no issues.

She further advised that in November there was a problem with the Shop in relation to leave during the Christmas period.  She confirmed that she sent 2 emails to the Shop and that the holidays were then approved.

The MD confirmed that in March 2023 the Complainant had been out sick and then was out sick again for a day.  She advised that the Shop had sought a medical cert for the single day of absence.  She stated that the Complainant had contacted her and was concerned that she was not believed in relation to the reason for her absence and she believed their treatment of her was unfair.  She stated that she contacted the Shop and outlined the Respondent policy and contact entitlements.  She stated that the Shop did not insist further on the provision of the cert.

The Respondent Representative referred the MD to the email of 14 March and the issues contained therein and asked her if she should have stepped in earlier in relation to how the Shop was managing the department.  The MD replied that when she was in Dublin soon after receipt of that email, she had met with the Complainant initially without the agent present.  She stated that she and the Complainant had discussed issues relating to stock and frustrations in that regard.  She stated that the agent then joined the meeting, that they had coffee and discussed the issues.  She stated that no concerns were raised in that meeting, that the Complainant was aware she was coming to Dublin and had not asked to meet with her regarding her personal issues.

The MD clarified the sick pay entitlements and confirmed that she had made the Complainant aware of those entitlements in response to queries raised.  She confirmed that the email had referred to other brand and operational issues and that she saw these as business matters and didn’t see them as HR grievances.

The MD confirmed that when the Complainant went out sick, she called up to say she had a medical appointment and that she mentioned being monitored and followed by the Shop.  The MD stated that she thought this was strange.  She stated that the Complainant asked her not to make contact with the Shop as she wanted to get cctv footage.  The MD confirmed that she did make contact with the Shop.

The MD confirmed that she received a further certificate that stated the Complainant was absent due to “work related stress”.  She stated that she had contacted the Shop regarding the issues, that the Shop had an EAP in place and that she had offered access to that programme to the Complainant and advised her that when she was well enough all parties could meet to discuss the issues. She stated that around that time the Complainant advised her that she had sought the cctv and that she was considering taking legal advice.  She advised that she was not aware that the Complainant was no longer in a union.  She stated that in the circumstances of the medical certificate and the issues raised she had extended the Complainant’s sick pay and that ultimately the Complainant was paid for sick leave up to 10 July. 

The MD confirmed that she did engage with the Complainant in relation to a temporary replacement to cover her sick leave, that she had assumed the Complainant would be returning when she was well enough but that it had proved difficult to recruit to the position.  However, the MD advised that she then received the Complainant’s letter of resignation, which was pleasant and made no mention of issues or other employees’ behaviour.

The Complainant Representative put it to the MD that the Complainant had emailed her to say she was “burned out”, to which the MD replied that as soon as the Complainant stated that she had work related stress she (the MD) understood there was an issue however, she stated that she did not relate this to the Complainant’s termination of her employment.  She stated that this was because she had advised that the matters would be looked into, and the Respondent was denied that opportunity.

The Complainant Representative put it to the MD that she should have stepped in earlier.  The MD respondent that she did step in and that she was contactable by phone and email.  The Respondent Representative put it to the MD that most emails were not responded to; to which the MD replied that she had responded by phone.  The Complainant Representative asked her to describe what she had done about the staffing issues.  The MD advised that the staffing issues were a matter for the Shop and that the Respondent was not responsible for these issues.

The Complainant Representative asked the MD if she accepted that the Respondent was vicariously responsible for the impact of staffing issues in the Shop on the Complainant.  The MD respondent that she did not accept, and that the Respondent did not put the Complainant under pressure.

The Complainant Representative noted the provisions of the Health, Safety & Welfare at Work Act in relation to the duty of care of an employer to protect their employees and to make adaptations where risks could not be eliminated.  The MD replied that she didn’t make regular contact with the Complainant while she was on sick leave as she felt that the medical issues were being adequately dealt with through the GP.

CA-00063736-002 (Employment Equality Act)

Preliminary Issue

The Respondent submitted that this complaint was out of time. The Respondent submitted that there had been no alleged discrimination within the allowable 6-month period and the allegations raised by the Complainant cannot be considered by the WRC.

 On 18 July 2024 the Respondent provided a separate submission in relation to the Complainant’s request for an extension of the time limit.  The Respondent submitted that:

·       The claim was lodged to the WRC on 27 May 2024 alleging the most recent date of discrimination as the 24 June 2023

·       The Complainant was competently engaging with her employer throughout 2023 and up to and after her medical absence began.

·       The Complainant was aggrieved with aspects of her work situation. She knew specifically why she was aggrieved in detail in June 2023. This was not something that was suddenly explained to her later. She was clear in her opinion and competent in her ability to set out her concerns.

·       The case of Dean Gibbons and Morehampton Foods ADJ 00006249 was cited as relevant, where an extension was not granted in circumstances where the complainant had knowledge of the grievance. In that case the Adjudication Officer stated “There is no suggestion that the complainant was unaware of the underlying facts about which he now complains” “It appears that the complainant must have at least suspected that the matters about which he now complains should not have been occurring. Yet he raised no complaint with his employer and delayed seeking advice until December 2016”

·       The Complainant was a member of a Trade Union. She herself confirmed this to the MD in March 2022. She had a respected source of advice available to her throughout this time.

·       The MD, her Line Manager, was also very clear that in Spring/Summer 2023, on at least one occasion, the Complainant referred to her intention to get legal advice, as was her right.

·       While on sick leave she regularly engaged with her employer and was in a position to make critical decisions like resigning from her job. Had she wished, she could have sought legal advice at this time. In fact, from the information provided she did seek legal advice in February/March before being deemed well and ceasing her illness benefit. She obtained legal advice in February/March but her claims were not made to the WRC until 27th May. No attempt is made to offer any explanation for this substantial portion of the delay.

·       The Labour Court decision where a claim for extension failed in such circumstances - Leon Kinsella and Anson friend – PWD2036 was cited as relevant.

In conclusion the Respondent submitted that it was its position that the extension of time under the Employment Equality Acts should not be granted and therefore the WRC had no jurisdiction to hear this matter.

The Substantive Issue

The Respondent submitted that without prejudice to the position that the complaint was out of time it would make the following points:

·       That the maximum allowable review period even if an extension were appropriate would be 12 months to 25 May 2023,

·       That the Complainant had not provided credible evidence to support a claim of discrimination.  Instead, she made “vague references to being monitored and observed by unnamed management and security guards”.  The Respondent submitted that those were unsubstantiated allegations and not credible allegations of discrimination on the grounds of disability.

·       That the allegations were promptly rejected by the Shop and that the Complainant was quickly made aware of that position.  That the allegation that the Complainant was somehow locked out of the CoreHR app was also rejected and no further evidence was ever provided on this.  The Complainant was aware that these matters could be discussed further should she have wished to provide more detail but she chose not to avail of this either directly of with the support of her advisors.

·       That the general and vague allegations the Complainant made cannot credibly be taken as fact and evidence of discriminatory behaviour.

·       That it was also the case that most medical certificates submitted contained no information regar4ding the nature of the Complainant’s absences.

·       That even if the Complainant had engaged and provided specific allegation against the Shop employees, those alleged to have discriminated against her by monitoring or secretly investigating her were not on constructive notice that any disability existed therefore no discrimination could have occurred.

The Law

The Respondent cited the case of Mitchell v Southern Health Board and noted that the Complainant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to the.

The Respondent also cited the case of Melbury Developments V Arturs Valpetters where it was stated “must first establish facts from which discrimination may be inferred…. facts of credible evidence…. mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

CA-00063736-001 (Unfair Dismissals Act)

I have considered carefully the submissions and supporting documentation provided by both parties and the evidence given by witnesses at hearing, together with all case law cited by the parties.  I paid particular attention to the Complainant medical certificates and the emails exchanged between the Complainant and the MD, as these assisted greatly with understanding the chronology of events and demonstrated how and if issues of concern were brought to the Respondent attention.

It is settled law that there are two distinct tests for constructive dismissal, and they are known as the “contract test” and the “reasonableness test”. (Ref Western Excavating (ECC) Ltd v Sharp IRLR 27 and Conway v Ulster Bank UD474/1981).  Both require the employee to discharge the burden of proof; but they are separate tests.  In a claim of constructive dismissal, the Adjudication Officer must determine if the employee has met either test. While an employee may be able to satisfy both tests, they are not required to meet both tests and there is no combined test of repudiation and reasonableness.

Contract Test

Western Excavating (ECC) Ltd v Sharp summarised the contract test as: “If an 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.”

Reasonableness Test

Western Excavating (ECC) Ltd v Sharp also stated that the reasonableness test provides that the conduct of the employer should be assessed 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.”  The reasonableness test requires an assessment of the employer’s conduct and the extent to which the employee sought to utilise the procedures and raise their concerns.

Application of the legal tests to this case:

This case relates specifically to circumstances which occurred relating to concerns outlined by the Complainant in relation to her treatment by the Shop, her allegations that the Respondent failed or neglected to address those concerns, her absence due to sick leave which she largely attributes to those issues and her ultimate resignation, in circumstances which she described as no longer tolerable.  The question that arises here is whether or not the Complainant was constructively dismissed either by repudiation of her contract or if it was reasonable for her to resign.

In considering evidence given at hearing, together with written submissions and appendices I have formed the view that the Complainant was suffering with a great deal of anxiety which she associated with her relationship with management in the Shop and with what she alleged was an inadequate response to those concerns from her line manager. 

In considering this matter I was cognisant of the environment within which these issues arose, the very challenging return to work for the retail sector post the Covid pandemic and the impact of the pandemic on subsequent staffing shortages.  I also fully accepted the position outlined by the Respondent that Brexit had a noticeable impact on supplies and this, in turn, combined with the effects of the Covid shutdowns, led to an environment of low stock supplies against a pent-up customer demand. I also noted that for 17 years the Complainant had a positive working relationship with the Respondent and was considered to be a high performing employee.  I was left in no doubt that the Complainant and the MD of the Respondent had a great deal of regard and respect for each other.  It is against this background that I consider the complaint of Constructive Dismissal.

The context whereby the Complainant was employed by the Respondent and was assigned to work in the Shop is also relevant.  The Complainant had no line management structure directly available to her on a day-to-day basis and worked operationally under the direction of the Shop management.

I noted that the Complainant alleged that there were significant staff shortages in the Shop, particularly from 2021 onwards and that these shortages impacted on (i) her being called to work outside of her own brand area, (ii) her start and finish times at work, and (iii) the volume of work and lack of flexibility in taking holiday time.  From the emails provided by the parties I noted that the Complainant appeared to have first raised this matter by way of a phone call with the Respondent in early October 2021 and wrote on 11 October advising the Respondent that 3 staff had called in the union in relation to “the staffing issues in our department and lack of support and stockroom support, our jobs have become overwhelming and physically hard.”

The Complainant further noted in that email that “I feel my mental and physical health has deteriorated.  At the moment I don’t have a good work/life balance and it’s going to get worse due to the late closing times coming back again”.  The Complainant asked the Respondent to consider allowing her to work set hours from 9 am to 5.30 pm and it seems that the Respondent position was that “this was not a request that could be granted given the opening hours of the Shop” but that the Respondent contacted the Shop and agreed that the Complainant could leave at 10 minutes past the hour to support her to get the earlier train home.  I further noted that despite the Complainant highlighting serious concerns for her physical and mental health the Respondent took no actions to evaluate the risk to the Complainant, arising from the hours of work or from the staffing issues, which appeared to be acute at that time.

The Complainant again highlighted the staffing shortages in an email of 16 June 2022 where she stated that “the department is chronically short staffed” and where she further outlined that there were only 12 staff in place versus 17 staff in 2019.  She also confirmed in that email that there used to be 10 full time staff in post, compared to only 2 (herself and 1 other) at the time of writing that mail.

I noted the Complainant email of 7 October 2022 where she highlighted issues in relation to not being approved leave by the Shop for 4 days in late November.  I noted that in that email she drew attention to the fact that the Shop had “messed up my holidays twice this year” and that they had allowed 7 staff to take holidays in the same week, leaving just her and one other staff member running the department for 4 days.  In that email the Complainant described that this was “an incredibly stressful time for me”.  I noted the Respondent position at hearing that this was the busy Christmas period and I noted that the Respondent did make contact with the Shop in relation to the leave request and that the leave was ultimately granted.  However, I further noted that no intervention was made in relation to the continuing staffing issues and their impact on the Complainant.

I noted further that matters were still unresolved when the Complainant emailed the Respondent again on 18 October 2022 confirming the email address for the Shop contact person.  In that email she described that she was providing the Respondent with a list of her days off and days in work.  She advised that she “had these days off always”, that she was working a 6-week rota with a rolling day off, which would result in a long weekend every 6 weeks.  In that email she confirmed that she never worked Sundays or bank holidays.  The Complainant further confirmed to the Respondent that the person making out the roster in the Shop consistently gave her the wrong day off and that despite her bringing this to attention the rota was never amended.  She advised that going forward she would not be brining those errors to attention but would just come in to work when “I’m supposed to be in” and she posed the question “If that’s ok with you?”  In that email she also clarified her on/off times for December 2022. The Respondent did not provide a copy of any response to that email nor did the MD give evidence at hearing in that regard. 

I noted that the Complainant was on certified sick leave from 15 February 2023 to 6 March 2023 and I noted that the certificate merely stated, “medical illness”. I noted that despite this lengthy absence from work there was no intervention by the Respondent to ascertain what, if any, underlying issues might be contributing to the absence or what, if any supports were required to support the Complainant’s wellbeing and to ease the Complainant’s transition back to the workplace.

I noted further issues in March 2023 where the Complainant brought to attention the fact that she was on sick leave for a single day (14 March 2023) and the fact that Shop management had requested a medical certificate for that day.  She outlined that she understood that she was not required to provide a certificate until day 3 of absence and outlined her concern that she felt the Shop did not believe she was ill.  She also outlined her concern that “there’s really no clear definition as to who I actually work for even though my employment contract is with Chantelle.”  She stated that she believed that the Shop was putting obstacles in her way.  The Complainant again outlined concerns in relation to the operation of the department, stating that the department still had no stock support and she confirmed that she always looked after Chantelle stock, deliveries, audits and transfer and that she was happy to do so as the Brand Manager.  She stated that what she did not agree with was that there was no stock support for all of the other brands that had no brand managers, resulting in her being expected to take on much of this activity.  The Complainant concluded this email by advising the Respondent “I’m stressed and frustrated with (the Shop) and it’s been going on for a long time now and I feel it’s definitely adding anxiety and stress to my life.”  I noted that this correspondence was sent within one week of the Complainant’s return to work from sick leave and I further noted that despite a clear assertion by the Complainant that she was suffering from stress and anxiety there was no intervention made by the Respondent to seek medical assessment or advice.

I noted further emails and periods of absence over the next number of weeks, and a meeting where the MD was present in Dublin and where issues were verbally raised by the Complainant.  In particular I noted the email of 1 June from the Complainant to the Respondent, while the Complainant was on sick leave, where she advised “I believe my illness, symptoms and IBS/anxiety are work related.”  In that email, in addition to outlining operational issues of concern, the Complainant stated, “I have found it difficult in the past to get your full support on issues with (the Shop).”  The Complainant also noted that “I’ve had repeated conversations, emails and messages to yourself and (the Shop) management regarding issues in my department. It's gotten worse in the last 4 months and definitely having a negative impact on my working life and personal life due to a stressful and sometimes toxic work environment.”

I noted that no action was taken on foot of that email and that while the Complainant did return to work on 6 June, she ultimately went out sick again on 25 June and never returned to work.

I accept the Respondent position that the grievances relating to allegations of monitoring of the Complainant by the Shop were only brought to attention after she went out sick in June 2023 and that the Complainant resigned in advance of the Respondent having an opportunity to address those issues. 

It is clear from the evidence set out above that the Complainant’s health was deteriorating from October 2021 onwards.  It is also evident that the medical issues, as discussed with the Respondent were such that they are often associated with anxiety and stress.  It is also clear from the evidence and supporting documentation outlined above that the Complainant repeatedly brought to attention issues of concern in relation to her day-to-day working environment.

I did note the Respondent position that the Complainant never raised a formal grievance about those issues.  In considering this matter I find it noteworthy that the MD confirmed to me at hearing that she was the Complainant’s line manager. I noted that the Grievance Procedure set out at section 19 of the Complainant’s contract provided that where a grievance could not be resolved informally, such issues could be referred formally to the Consultant Supervisor and thereafter to the General Manager.  I noted that at hearing the MD acknowledged that she was the most senior person and that there were no individuals occupying the roles described in the Grievance Procedure contained in the contract.  The Respondent did not maintain the structures outlined in the Grievance Procedure nor did it amend the procedure accordingly.

In these circumstances, I have formed the view that the Complainant did put the majority of her grievances in writing to the most senior person available to her on multiple occasions and as best she could, she sought to act in accordance with the provisions of the Grievance Procedure. 

It is also clear that the Respondent MD did make efforts to resolve some of those issues, but I am clear that those efforts related only to minor issues such as, the requirement for a medical certificate for a single day of absence or to taking annual leave.  The more complex matters relating to on-going roster problems and staffing shortages in the Shop and the impact of those issues on the Complainant were never addressed by the Respondent.

It is also evident that, despite, an escalating ill health situation the Respondent never sought any medical support or intervention in relation to the Complainant by way of Occupational Health referral.  In the circumstances described, which were not disputed, I consider that this is the minimum the Respondent should have done.

I note that stress in the workplace is a recognised occupational hazard under the Safety, Health and Welfare at Work Act, 2005 and in accordance with those statutory provisions ought to be dealt with through a risk management process and utilising the principles of prevention.  The Health, Safety & Welfare at Work Act, sets out the underpinning of health and safety principles, and the duties of both parties under the Act are key to this case.

In light of the foregoing, I consider that the Respondent failed in it’s duty of care to the Complainant to protect her health, safety and wellbeing while at work.

Taking all of the above into account I find that the failure of the Respondent to respond adequately to the concerns raised by the Complainant and/or the significant ill health issues of the Complainant amounts to repudiation of contract and so I find that the Complainant complaint is well founded.

Redress

In respect of redress, I noted that the Complainant had secured alternative employment by 10 May 2024.

 I therefore calculate her losses associated with her constructive dismissal to amount to €15,800

CA-00063736-002 (Employment Equality Act)

Preliminary Issue – Extension of time limit

The Complainant submitted her complaint to the WRC on 27 May 2024 and in her complaint form she cited 24 June 2023 as the most recent date of discrimination. 

Section 77(5) of the Act states that “subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.”

I noted that the Complainant recognised that she did not meet the requirements set out therein, and so, in accordance with the provisions of Section 77(6) she sought an extension of the time limit to 12 months.

The Complainant set out the basis for this application as follows:

·       She was on certified sick leave until December 2023 and was in receipt of medically certified Illness Benefit until March 2024.

·       She was acting under a disability until that time and was unable to deal with her complaints

·       She only sought legal advice in February / March 2024 in relation to her employer’s conduct

·       She did not recognise that the Respondent’s unreasonable conduct constituted discrimination and/or victimisation until she obtained legal advice in 2024 and as such, she was unable to lodge a claim within the six-month time period allowed.

I noted the Complainant contention that had she been aware that the Respondent’s conduct amounted to discrimination and/or victimisation, she would have lodged a dispute within the statutory timeframe. 

I noted the Respondent position that the extension of time under the Employment Equality Acts should not be granted and therefore the WRC had no jurisdiction to hear this matter. 

In this regard I noted that the Respondent set forth the following arguments:

·       That the Complainant was competently engaging with her employer throughout 2023 and up to and after her medical absence began.

·       That the Complainant was aggrieved with aspects of her work situation.

·       That she knew specifically why she was aggrieved in detail in June 2023 and that this was not something that was suddenly explained to her later.

·       That she was clear in her opinion and competent in her ability to set out her concerns.

·       That she was a member of a Trade Union and so she had a respected source of advice available to her throughout this time.

·       That the Complainant had, on at least one occasion, in early 2023 referred to her intention to get legal advice

·       That while on sick leave she regularly engaged with her employer and was in a position to make critical decisions like resigning from her job. She, therefore, could have sought legal advice at this time.

·       That from the information provided she did seek legal advice in February/March before being deemed well and ceasing her illness benefit. She obtained legal advice in February/March, but her claims were not made to the WRC until 27th May. No attempt is made to offer any explanation for this substantial portion of the delay.

In considering the merits of this application for an extension of time I am guided by the position set out in the case of Cementation Skanska v Carroll, DWT 0338 where the Court stated as follows:

 “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

The Complainant cited the most recent date of discrimination as being 24 June 2023, which was her last day of work.  It is clear from the supporting documentation provided by the parties that, despite her ill health, the Complainant continued to engage with the Respondent from that date until she resigned her position in December 2023.

The WRC Guidelines, available on the WRC website, sets out very clearly that where an extension of time is being sought the Complainant “should include all necessary detail about why reasonable cause exists to grant an extension. Supporting evidence such as medical certificates should be included where relevant.” At no point did she provide the WRC with medical evidence of a disability which would have provided proof of a disability.  While I accept that the Complainant was ill, such illness is not necessarily a disability.

I accept the Complainant position that she was not a member of a trade union and had not been for many years.  However, it was open to the Complainant to get advice at any time during 2023 and up to and beyond her date of resignation.  The Complainant confirmed that she only sought that advice in Feb/March 2024, approximately 8 months after the last occurrence of the discrimination is alleged to have occurred.  It took a further 2-3 months before her complaints were submitted to the WRC and the only explanation offered for this time delay was that this time was necessary to evaluate the issues and submit the complaint.

I do not find this explanation satisfactory, and I find that the Complainant has not demonstrated reasonable cause for the delay in submitting this complaint and consequently I do not agree to extend the timeline for submission of the within complaint.

In all the circumstances, I find that this complaint is out of time.

CA-00063736-001 (Unfair Dismissals Act)

I have found that this complaint is well founded, and I decide accordingly.  In all the circumstance it is also my decision that the Respondent is to pay the Complainant the sum of €15,800 as compensation for the losses arising from her constructive dismissal.

CA-00063736-002 (Employment Equality Act)

I have found that the Complainant did not demonstrate reasonable cause for the delay in submitting this complaint and so I did not agree to extend the timeline for submission of the within complaint.  I have found that the complaint is, therefore, out of time and so it is my decision that this complaint is not well founded.

Constructive dismissal; discrimination on the ground of disability