Complainant

Respondent

Parties

Sylvia  Finnegan

Farrelly’s Supermarket Ltd. T/a Daybreak Abbey Crescent

Representatives

Rory Treanor, B.L. instructed by   Crushell & Co Solicitors

Dominic Wilkinson, B.L. instructed by  ARAG Legal Protection

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-00055894-001

03/04/2023

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 two witnesses for the respondent undertook to give their evidence under affirmation.

 On the first hearing day it transpired that additional claims had been submitted to the WRC and the parties suggested that it may be prejudicial to continue with a single complaint.  In the circumstances the case was adjourned to enable both parties to make submission on all matters.  At the reconvened hearing the complainant was taken through her evidence and cross examined.  The hearing was adjourned to hear evidence-in-chief and cross examination from the two witnesses for the respondent.  On reconvening, the witnesses for the respondent failed to turn up.  The legal representatives for both parties were invited to provide closing submissions and the case closed in the absence of any evidence from the respondent.

The respondent failed to provide the timesheets requested by the adjudicator at the second day of hearing.

The complainant submitted that she worked for the respondent since October 2004. Her hours were 9 a.m. to 2 p.m., Monday to Friday. Her job was a sales assistant until, in October 2018, she was asked to be a stand in manager.  Hours from then on were from 8.30 a.m. to 2.30 p.m. Monday to Friday, which was agreed with the owner.

The complainant submitted that her issues started in December 2022 after a new manager was taken on.  The new manager informed her that her hours would be changing and that she would be required to work evenings and weekends. The complainant attempted to resolve the issue internally when she brought her issue to the owner.  Even he agreed that he didn’t know why she would be needed to do those hours as there were enough staff.  It ended up the three of them having a meeting to discuss it. The new manager said that, as he was a new boss, if she didn’t like it, she could leave.  After that meeting, his attitude towards her and around her got worse to the point that another staff member commented on it and how uncomfortable it was.

The complainant submitted that when the informal approach didn’t work, she felt like she had no other option than to raise a formal complaint. She wrote a letter of complaint and brought it to the owner as there was no HR department, but she had included other things that had happened in the meantime.  The complainant submitted that although she had raised a formal complaint, the owner did not take her concerns seriously. She had expected some sort of an investigation but there was nothing really. The letter wasn’t mentioned to her again by the owner, but it was by the manager.  

The complainant submitted that she asked him for a day’s holiday, and he told her that she couldn’t use it as a day’s holiday. When she questioned him as to why, he said he knew about the letter of complaint and that, if she didn’t take it back, then the two would have problems. The complainant indicated that she wouldn’t be taking it back as everything in it was true. He said it was all lies so she started listing out the things in the letter and he agreed that he had said the things but that it was all done and said jokingly.

The complainant submitted that she was subsequently given two letters, the first of which reduced the number of days she would be rostered, the second varied her hours of work.  She submitted that she told the manager that she couldn’t work early mornings, evenings and weekends. Her working hours were due to be varied from the following week.   The complainant submitted that she took sick leave for work related stress because of the anxiety it was causing her and neither her boss nor manager have enquired about what was causing it.  She felt like they knew she would eventually resign as it was something that they both wanted her to do.

The complainant submitted that unfortunately she had to resign from her job.  This has had a financial effect on her and her family with some of the bills being unpaid. It has also had a significant effect on her family life.

The complainant submitted that she recently went for an interview in a similar role to what she had been doing, and they asked why she had left after 18 years to go to a similar job and had no reference.   She felt embarrassed. They knew she had worked there but they wanted to know what the reason was as to why she had left.

The complainant submitted that she tried repeatedly to bring this issue to the attention of the owner.  She voiced her concerns on a couple of occasions with him about what was going on but he failed to address the concerns she had. In fact, his response was to hand her an envelope with two letters reducing her days and changing her hours. As an employer, they have a certain obligation to protect her mental health and wellbeing, and he failed to do so.

The complainant is seeking compensation for loss of earnings and for her solicitors’ fees.

The complainant’s oral evidence supported her written submissions in this case.  She outlined the working environment noting that the business premises underwent renovation.  She responded to cross examination, providing cogent answers.

The respondent submitted that there was a meeting between the complainant, the owner and the manager in January 2023 to discuss changes in the staff management of the retail premises.  This resulted in changes to the weekly working hours and to the roster.  This was notified to the complainant.  She did not take a grievance regarding the reduction of her working time.

The respondent submitted that the complainant has not established the burden of proof required to rely on constructive unfair dismissal.

The respondent witnesses did not provide any oral evidence to the hearing.

The complaint form submitted in relation to this case outlined that the complainant’s hours were reduced and that her roster was changed from the normal ‘mornings only’ pattern.  She submitted that she tried to engage with the owner regarding these changes he did not engage.  She noted that the changes were given to her in writing with a weeks’ notice.

The complainant provided evidence of her efforts to try to raise this complaint with the owner.  This evidence was not contradicted by the evidence of the respondent as none was given.  Accordingly, I find that the complainant has established that she was left with no course of action other than to resign. 

She gave evidence of working a 24-hour week at a rate of €14.86 per hour, giving rise to a weekly wage of €356.64.  She stated that she was out of work for 8 weeks, giving rise to a loss of earnings of €2,853.12.  The complainant also submitted that there was an ongoing loss of €3.36 per week as she was now working on a lower wage.  One year at this level amounts to €174.72

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was unfairly dismissed.  I award the complainant the amount of the loss of earnings, i.e. €3,027.84 which is just and equitable in all the circumstances.

Unfair Dismissal – Constructive dismissal – established that there was no other recourse – award of loss of earnings