Complainant

Respondent

Parties

Samantha  Maloney

The Q Cafe Company Limited

Representatives

Eoin Powderly Powderly Solicitors LLP

Hugh Hegarty Managment Support Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059497-001

19/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059497-002

19/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059497-003

19/10/2023

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 a witness for the respondent (A company Director) undertook to give evidence under affirmation.  Cross examination was facilitated for both witnesses.

The complaint relating to holiday pay was withdrawn at the hearing.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

CA-00059497-001 Terms of Employment

The complainant submitted that she was not provided with a copy of her terms and conditions of service in writing.

CA-00059497-002 Unfair Dismissal

The complainant submitted that she had to leave her job due to the conduct of her employer.  The complainant stated that she was out of work for six weeks, and that her hourly rate was €12.70.

The complainant submitted that a number of events gave rise to her resignation. She stated that she received incorrect pay and that when she sought clarity on her contract she was not permitted to retain a copy of her second contract signed with the respondent. She noted that there was a deterioration in working conditions which she flagged to the respondent. She noted that there were improper charging practises on the part of the respondent. She noted that she was not included in the pay increase and that she was not paid holiday hours due to her.

The complainant submitted that she raised a formal grievance on 24 May but when she inquired about the matter on 19 June she was told that the investigation had been completed and sent to the Business Support Manager. 

The complainant completed the resignation form and finished working with the respondent on 18 June 2023.

The complainant submitted that Section 1 of the Unfair Dismissals Act envisages two circumstances in which a resignation may be considered a constructive dismissal. First, is 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’. This requires that an employer 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 as held in Western Excavating (ECC) Ltd v Sharp [1978] QB 761.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he/she is justified in leaving.

The complainant submitted that in constructive dismissal cases the Adjudicator must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UD 474/1981).

The question then for the Adjudicator is to decide whether, because of the conduct of the employer, the complainant was entitled to or it would have been reasonable for him, to terminate the contract of employment.

The complainant cited the following cases in support of her contention that she was constructively unfairly dismissed:

·         Beatty v Bayside Supermarkets UD 142/1987

·         London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493

·         Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23

·         Cronin v Eircom Ltd [2006] IEHC 380, [85]

The complainant submitted that by applying the law to the facts of the complainant's case, there are a number of breaches which cumulatively, amount to a breach of the employment contract and which entitle the complainant to resign and claim constructive dismissal on the basis that the employer breached the implied term of trust and confidence. The complainant repeatedly sought clarity on the correct pay rates, her contract, and her holiday pay but no avail. Her working conditions deteriorated with the kitchen being understaffed and the appliances frequently malfunctioning. Her employer was overcharging the nursing home operator for products that were not supplied and residents that did not exist, which is dishonest business practice. Therefore, the complainant’s trust and confidence in her employer was undermined, and which entitled her to resign.

CA-00059497-003 Organisation of Working Time

The complainant submitted that she did not receive holiday pay that she was entitled to.  This complaint was withdrawn at the hearing.  However, it was noted that this issue was a contributory factor in her resignation.

Summary of Relevant Oral Evidence:

In her evidence the complainant stated that she signed a contract of employment with the previous employer. She stated that she signed a second contract but was never given a copy of it. Accordingly she is unable to locate the document. Under cross examination it was put to her that if she had provided her pay slips indicating that she was on a different rate of pay her rate would have increased accordingly.

In relation to the constructive unfair dismissal the complainant indicated that in may 2023 she was told she was at risk of redundancy. She stated that she was doing many additional hours per week and that it was not possible to work in that position on her own. She said that there were originally 5 catering assistants but one had left. She noted that appliances were not working regularly and that things such as the grease trap and the oven had to be fixed constantly.

She stated that she noted that there were improper charging practises being undertaken by the respondent and that she brought these to the attention of a number of managers. She says she raised it with her immediate boss then higher but nothing was done. She also noted that everybody was given a 70 cent pay increase but she was not paid the increase. She noted that following her resignation she was out of work for six weeks and at the time was earning €12.70 an hour.

Under cross examination she was asked whether she raised the issue of holiday prior to resigning but she said that it was hard to remember everything that she brought up the holidays carried over from her previous employer under the transfer of undertaking procedures. It was put to her that the company disagreed with this and it had no knowledge of the hours that she says she was to be paid. She was asked how this contributed to her resignation. She was asked whether she raised a grievance regarding the holiday ‘app’ but she indicated that she did not.

The complainant was asked whether she was on minimum wage when everybody else got the pay increase and she indicated that she wasn't. It was put to her that when she queried this she was ultimately given the same pay rise as everybody else.

On the issue of improper charging, it was put to her that this was raised with the company and she was asked how their reaction thereafter was unreasonable. There were no threats, no victimisation, the witness stated that there was no response at all. She was asked did it ever come back to her but she said no that it didn't. She was asked whether charging practises were referenced in her terms and conditions but indicated that there were not.

It was put to her that she presumed that the respondent owned the equipment that was malfunctioning and it was put to her that the respondent put in additional staff to cover the dishwashing incidents. The witness disputed this.

CA-00059497-001 Terms of Employment

The respondent submitted that the complainant was due to be issued terms and conditions in line with the Act. Further it submitted that although the complainant may or may not have been issued terms and conditions the breach of the Act would have occurred in 2017 two months after complainant began employment. The breach, if it did occur, was and remains out of the control of the respondent. The respondent was not the employer at the time and was not in a position to comply with the legislation and therefore cannot be held responsible for the breach if in fact one did occur.

The respondent is seeking that the adjudicator determined that the complaint is not well founded.

CA-00059497-002 Unfair Dismissal

The respondent submitted that in relation to the constructive unfair dismissal, the employee failed to act reasonably and failed not only to exhaust all internal procedures brought up in relation to the issues she outlined on her resignation form. The definition as outlined in Section 2(1) of the Act is clear - the conduct of the employer must be of a nature to justify the employee terminating the contract. However the test has set out in An Employee v An Employer (UD1421/2008) set out what is required by the complainant to meet the definition. The complainant must act reasonably and exhaust all internal procedures. In this case the complainant was well aware of the grievance procedure, and in fact chose to use the procedure following her resignation but only chose to address an issue she had or perceived she had with pay, the matter was dealt with according to the procedures.

The respondent submitted that it is clear that in order to succeed with the claim of constructive dismissal a complainant must act reasonably and the respondent quite unreasonably.  In Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331, The employment appeals tribunal held as follows:

“the tribunal must consider whether the cause of the employer's conduct the claimant was entitled to terminate his contract or it was reasonable for him to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In the case of Brady v Newman UD330/1979, the tribunal stated at pp9-10:

“… An employer is entitled to expect his employee to behave in a manner which would preserve his employers reasonable trust and confidence in him so also must the employer behave”.”

It is clear from the facts as outlined the conduct of the employer in this case was not either the type or degree that amounted to a significant breach of the contract of employment or conduct that showed the employer no longer intended to be bound by one or more of the essential terms of the contract. In fact the respondent engaged, offered solutions - both short and long term, and made every effort to engage and work with the complainant in order to preserve her employment.

Summary of Relevant Evidence:

The respondent witness was the Managing Director of the company.  She indicated that the site was taken over by way of transfer of undertakings at the end of April 2020. It was noted that they received a spreadsheet from the previous employer outlining pay of the various staff. She confirmed that they never issued terms and conditions as the previous employer's terms and conditions counted in respect of staff.

She noted that the rate of pay issue had come up in 2022 but had never been raised previously. She noted that they had confirmed pay entitlements at the transfer of undertaking stage and she couldn't find anything related to a change in pay. She stated that although she couldn't find anything related to the change in pay but asked the complainant that if she had pay slips from the previous employer, it would have demonstrated matters and if they had sight of the pay slips they would have paid on that basis.

As to the deterioration of the conditions of employment the witness noted that the equipment is not owned by the respondent but by the client and, although they try to ensure equipment is in working order, there is an ongoing issue with some of the equipment, notably the dishwasher. She noted that it was not the respondents responsibility to maintain equipment but that of the client. She stated that additional staff were rostered for the days when machinery was not working.

As to the issue of redundancies the witness noted that they wanted to change the way things were being done on the site and therefore redundancies became necessary.

Under cross examination the witness noted that the grievance that was made in May was dealt with, and there was no delay on the part of the respondent. On the redirection it was put to the witness that the resignation was made just before the grievance was submitted, she confirmed this was the case.

CA-00059497-001 Terms of Employment

The complainant suggested that her terms of employment had changed following the transfer of undertakings and the change over from her previous to her current employer. The respondent for their part noted that it had received a spreadsheet with the pay rates for all the individuals. It had no document to indicate that the complainant was to be paid at any different rate.  There was no difficulty raised for two years.  The respondent asked the complainant to provide pay slips to demonstrate that she was on the different rate of pay, however she was not able to provide pay slips to the respondent.  In the circumstances I'm not satisfied that she has established that her terms of employment changed from one employer to another.

The respondent submitted that the terms and conditions of employment given to the complainant by the original employer is sufficient for the purposes of the Act.  Given that a transfer of undertakings took place, and in the absence of any documentary evidence in support of an alternative, I'm satisfied that the terms and conditions remained the same. Accordingly I find that this complaint is not well founded.

CA-00059497-002 Unfair Dismissal

The complainant submitted that she was left with no alternative but to resign. She gave a number of factors as reasons to demonstrate that she could not rely on the respondent to investigate her grievance properly.

The grievance procedure submitted by the complainant notes that there are three levels of grievance: the first is informal and includes a time frame, the second is formal and requires a written complaint to be made.  This is the format that the complainant followed.  This type of grievance includes no time frame for processing. The third level grievance which also provides no time frame.

The complainant took a grievance around the same time as she indicated her desire to resign.  Three weeks later she sought an update and was told that the matter had been investigated and had been progressed up to the Business Support Manager. Her resignation took effect, as noted, on 18 June.

The complainant took her grievance but did not wait for the process to play out. She stated that this was due to her previous dealings with the employer. However in both written and oral submissions the issue of an error in pay was dealt with, although perhaps not to the liking of the complainant, but dealt with nonetheless. She confirmed that she was not victimised or threatened in any way from making a complaint regarding charging practises and also confirmed that when she raised the issue of a difference in pay, it was resolved in her favour.

Accordingly I do not think it was reasonable for the complainant to conclude that the grievance procedure could not be relied upon. She resigned at the same time as taking a grievance and accordingly did not seek to have matters dealt with by the internal procedures before resigning from her position. In the circumstances I find that she has not established that there was no alternative but resignation. I find that the complainant was not unfairly dismissed.

CA-00059497-001 Terms of Employment

Having regard to all the written and oral evidence provided by the parties, my decision is that the complaint is not well founded.

CA-00059497-002 Unfair Dismissal

Having regard to all the written and oral evidence provided by the parties, my decision is that the complainant was not unfairly dismissed

Terms and Conditions of employment – not well founded – constuctive unfair dismissal – internal procedures not exhausted – not unfairly dismissed.