Complainant

Respondent

Parties

Marianne  McGrath

Ya Gift + Home Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006

CA-00063076-001

24/04/2024

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

CA-00063076-002

24/04/2024

The Complainant gave evidence on affirmation. It was her complaint that due to the conduct of her employer, the Respondent, she had no choice but to leave her employment and she was due outstanding annual leave payments.

Mr. and Mrs. O’Sullivan appeared on behalf of the Respondent, and both gave evidence on affirmation.

Documentary evidence was relied upon by both parties at the hearing.

The parties agreed that she commenced on 29 July 2021 on a part time basis and her last day of work was 27 April 2024 with her resignation dated 11 April 2024. It was agreed that the Complainant earned €12.50 per hour.

CA-00063076-001

At the outset of the hearing, the Complainant confirmed that she did not work in the civil aviation industry and that her complaint related to her annual leave entitlements. She claimed she was owed a total of 31.14 annual leave days for 2021, 142.86 days for 2022 and 2023, and 32 days for 2024.

Upon inquiry, she confirmed that she did not have a contract of employment. She also confirmed that she worked on a part-time basis, between 14 and 28 hours per week, and earned €12.50 per hour gross.

CA-00063076-002

The Complainant stated that she was asked to take a parcel to the post office by Mr O’Sullivan during a phone call. As this was not part of her usual duties, she was unsure what to do. She also spoke with Mr. Sullivan regarding the parcel. It was her evidence that she was asked, in a patronising manner, whether she knew how the post office worked and how to post a parcel. She stated that she hung up in response.

Upon inquiry, she confirmed that she had not formally raised a grievance. However, she did express her feelings shortly afterward in WhatsApp messages, in which she described the workplace as a “toxic working environment.” She ultimately resigned via a letter attached to a message dated 11 April 2024.

She added that she previously raised grievances “many times” with Mrs O’Sullivan.

The Complainant also submitted that she made a complaint to the Respondent concerning a breach of her privacy. She alleged that the brother of a director of the Respondent who was also her partner along with another employee, were allowed to listen to a voicemail in which she raised a workplace issue.

In mid-2023, the Complainant claimed that the Respondent hired another employee to work on Fridays and Saturdays without offering those hours to her. When she raised this with the Respondent, she was told that different people were required for different roles.

In terms of financial loss, it was the Complainant’s evidence that there were “no opportunities in the town” of Kenmare from April 2024 onwards as she had no hotel experience. She did send her cv to a retail outlet in Kenmare and another in Killarney. She hoped to obtain employment in a local supermarket but that was prior to her leaving her employment with the Respondent. Upon inquiry, the Complainant was given a further opportunity to present her attempts to mitigate her loss and asked about the high demand for employees during the summer moths in tourist towns such as Kenmare. It was her evidence that during the summer of 2024 “it was impossible to find a job”.

CA-00063076-001

The Respondent stated that the Complainant was simply asked to take a parcel to the post office because it was a large item that needed to be handed in directly. Mr. O’Sullivan added that the postage labels had already been printed and were provided to the Complainant.

In relation to the allegation that another employee was hired and given more favourable hours, Mr. O’Sullivan stated that the Respondent operated another shop in the town. The additional employee primarily worked in that second business but was temporarily assigned to cover leave in the Complainant’s workplace.

In response to the Complainant’s allegation that she had raised a grievance “many times” and had called Mrs. O’Sullivan, it was Mrs. O’Sullivan’s evidence that she never worked with the Complainant and had no day-to-day interactions with her

The Respondent denied that the Complainant was unfairly dismissed.

CA-00063076-002

In relation to the complaint regarding unpaid annual leave, it was the Respondent’s evidence that they operated the “Thesaurus” payroll system, which automatically calculates 8% of the hours worked as annual leave, to be paid to the employee.

Documentary evidence was provided showing the Complainant’s hours worked during 2021, 2022, and 2023.

It was Mr. O’Sullivan’s evidence that the Complainant was paid a sum of €940.46 on 13 April 2024, which corresponded to 74.5 hours of accrued annual leave.

CA-00063076-001

The test for constructive dismissal is set out in Section 1 of the Unfair Dismissals Act 1969, with the burden of proof resting on the employee to establish that either, because of the conduct of the employer, the employee was entitled to terminate their contract, or that it was reasonable to do so.

The case law is clear that an employer must be given notice of the grievance, such as a formal written grievance, and then given a reasonable opportunity to investigate and respond before an employee takes the step of terminating their employment. This step can be bypassed only in particular circumstance, of which this complaint cannot be reasonable concluded to fall into.

In relation to the main incident cited by the Complainant as the reason she felt she could no longer continue in her employment with the Respondent, the Supreme Court judgment in Ruffley v The Board of Management of St Anne's School [2017] IESC 33 is helpful. In that case, the Court held:

“An employer is entitled to expect ordinary robustness from its employee.”

A request made to a retail employee to take a parcel to the post office cannot, by any reasonable standard, be considered an unreasonable instruction. While the Respondent’s tone or manner may not have been to the Complainant’s liking, the expectation of ordinary robustness applies. This principle is relevant not only to this particular event but also to the other examples cited by the Complainant in her evidence.

Regarding the hiring of another employee in mid-2023, I accept the Respondent’s evidence that it operated two businesses, and that the additional employee was hired primarily to provide cover for days off or annual leave. This explanation is credible, particularly given the Complainant’s own evidence that she was employed on a part-time basis. There is no evidence before me that the Complainant requested additional hours from the Respondent between mid-2023 and her resignation in April 2024.

In conclusion, I find that the Complainant was not unfairly dismissed from her employment with the Respondent.

CA-00063076-002

On the basis there was no objection from the Respondent to the complaint being submitted under the incorrect Regulation together with the fact, it was ready to meet the complaint intended by the Complainant, I will proceed to consider the complaint pursuant to Section 27 of the Organisation of Working Time Act 1997.

While it is less than ideal that the Complainant was not provided with a contract of employment to detail her annual leave entitlements, it is accepted based on the documentary evidence presented that the Complainant was paid on the basis of a third of her hours worked pursuant to Section 19 of Organisation of Working Time Act 1997.

Furthermore, it is noted that the Complainant did not dispute she received the sum of €940.46 on 13 April 2024.

For these reasons, I find the complaint is not well founded. 

CA-00063076-001

I find that the Complainant was not unfairly dismissed.

CA-00063076-002

I find the complaint is not well founded. 

Unfair Dismissal