Complainant

Respondent

Parties

Nicole  Darcy

CS Calzature Limited trading as Carl Scarpa

Representatives

Aoife Moloney of Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068459-001

06/01/2025

The Complainant had worked for the Respondent shoe retailer since the 20th of June 2023.

She submitted her resignation verbally on the 23rd of December 2024. The resignation took effect on the 2nd of January 2025 and she submitted this complaint alleging constructive dismissal on the 6th of January 2025.

The Complainant gave evidence under affirmation and provided a number of documents before the hearing.

She worked part time but was always trying to get more hours but was told there were not enough. When someone would leave the company she would generally get an increase in hours temporarily but this was never sustained.

This occurred again when the store manager left and Ms Miziala joined. She cut her hours from 28-29 hours per week to 15 hours per week. When the Respondent’s records of the Complainant’s hours were put to her she accepted them as accurate. These records showed a reduction from about 21 hours per week to about 12 hours per week at that time. The period of working 21 hours a week was temporary.

The Complainant approached the area manager around October 2024 and was told that in order for her to get more hours she needed to get more sales. She went to Ms Miziala and sought more time on the floor but instead was put in the stock room.

After that she started looking for a new job.

In November 2024 she was told that she wasn’t clocking in and clocking out. There were issues with the clock in system and she tried to tell them that this was not working. She was the only person who was getting trouble over it. This problem persisted over November and December and she was left short a number of times in payroll.

She then secured a job and gave verbal notice.

After she put in her notice she discovered that the managers were talking about her employment on the internal store whatsapp group and generally seemed to think it was good she was leaving. The messages even stated that she got the push that she needed to go. 

Anytime she had an issue she went to Ms Miziala and the area manager. She took advice from Citizen’s Advice who said she should raise a grievance however she couldn’t find the policy. She asked one of the girls who worked there who said she never heard of it. She had asked the area manager who said it was with her contract but she never received a contract. She thought her contracted hours were between 11-17 hours.

The Respondent was represented by Ms Aoife Maloney of IBEC who made written and oral submissions on their behalf.

The Respondent’s position is that the Complainant was a part time member of staff contracted to work between 7 and 11 hours a week. She sought more hours which they were not in a position to provide her. She then left for a job with more hours. There is no basis for a constructive dismissal claim.  

Mr Stephen Moffat the Respondent’s Director gave evidence under affirmation. He has been Director for 20 years.  The Respondent has a robust internal complaint process which involves an informal investigation process and which can then be escalated to a formal process. This is outlined in the company handbook and every new hire is given a copy of the company handbook by post and email.

Ms Patriycja Miziala gave evidence under affirmation. She is the store manager and has been working for the Respondent for just over 6 months. The Complainant was not able to work more than 3 days a week and preferably not at the weekends. Her hours were not reduced and remained within her contractual band.

She did not reprimand the Complainant and only reminded her how important it was to clock in and out. She only remembers two times she raised this with her when the Complainant had missed clock ins. 

The Complainant normally volunteered to be in the stock room. Ms Miziala does not tell people to go there she usually asks who is on staff with her who wants to go. She disputes the Complainant’s allegation regarding being sent there.

When the Complainant resigned she told her that she had gotten a better job with no weekends. She was happy and Ms Miziala was happy for her.

Ms Mizialia accidentally sent messages about the resignation to an internal whats app group. When she discovered this she apologised over the phone.

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

This is outlined in section 1 of the act which defines dismissal as to include:

the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.

The burden of proof is on the Complainant to establish that their resignation was actually a dismissal by virtue of the above definition.

It is agreed between the parties that the Complainant was hired on a part-time basis and sought consistently higher hours and left, at least partially, for this reason. The Respondent is correct that this is not a basis for a claim of constructive dismissal. While there is a difference between the parties as to what the Complainant’s contracted minimum hours were both parties accepted that the Complainant was working above the respective minimums.

The Complainant also alleges that two further issues forced her resignation. The first is that she was prevented from obtaining higher hours by Ms Mizialia who sent her to the stock room to prevent her improving her sales. It is not clear how many times this was supposed to have happened.

Ms Mizialia denies this entirely and provided evidence that the Complainant volunteered for the stock room and stock room duties only take a couple of hours and do not last a shift.

The Complainant also alleges that she was criticised for failing to clock in appropriately when this was actually an issue with the system and not her. The problems associated with this system left her short a number of times and she had to follow up with payroll. Ms Mizialia disputes this as well and says she only brought it up with her twice as a reminder.

Regarding this issue of clock in, I am of the view that even I was to accept the Complainant’s version of events over that of Ms Mizialia these allegations would not meet the threshold of constructive dismissal. While there is clearly some sort of dispute about the efficacy of the clock in system this only happened for a few weeks before the Complainant’s resignation. Issues like these are frustrating but are not a basis for an employee to reasonably consider themselves forced to resign.

The issue of stock room assignment is potentially more serious. If I were to accept the Complainant’s evidence over that of Ms Mizialia, it would point to a deliberate attempt to stop her progressing in the company and obtaining more hours. However, the Complainant was unclear how many times she alleged this to have happened.

I generally found Ms Mizialia to be a credible witness whereas the Complainant’s oral evidence was seriously undermined by her decision to take direction from a third party, off camera, a number of times while she was giving evidence.  At one point she was audibly told how to respond to specific questions.

In the circumstances I prefer the evidence of Ms Mizialia over that of the Complainant and do not find that she was deliberately stopped from obtaining more hours by being assigned to the stock room to stop her increasing her sales.

While the Complainant has pointed me to a number of text messages, I have read these in the context of the wider exchange. They appear seem to refer to a general view that she was unhappy in the role and that her moving on had been a good decision for everyone, rather than there had been a concerted deliberate attempt to force her resignation.

I find that the complaint is not well founded.