Complainant

Respondent

Parties

Michelle  Jaap

The Coffee Mine

Representatives

  Self- Represented.

 RVW O'Reilly Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067567-001

21/11/2024

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

CA-00070196-001

21/03/2025

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

CA-00070196-002

21/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00070196-003

21/03/2025

The complainant has submitted a complaint that the respondent contravened the provisions of the

Terms of Employment (Information) Act, 1994, and the terms of the Minimum Notice & Terms of Employment Act, 1973, and the terms of the Unfair Dismissals Act, 1977, when she was constructively dismissed on 19/11/2024.

The complainant withdrew complaint numbered CA-00067567-00, a complaint under the Equal Status Act 2000.

She had been employed from 22nd June 2023 up until the date of her dismissal on 19/11/2024 as a deli assistant in the respondent’s coffee shop. Her duties included customer service, food preparation, dispensing hot and cold beverages and ancillary duties including cleaning food preparation areas, kitchen area, dining area and bathrooms.  

She worked 20 hours a week for which she was paid €280.

She submitted her complaint to the WRC on 21/11/2024.

CA-00067567-001. Complaint under Section 21 Equal Status Act, 2000.

The complainant withdrew this complaint.

CA-00070196-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

Evidence of complainant given under affirmation.

 The complainant contends that the respondent contravened section 3 of the Act by failing to provide her with terms and conditions of employment within a month of her employment.

The complainant seeks compensation.

CA-00070196-002.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant submits that she was constructively dismissed on the 19/11/2024 when the owner told the complainant to “ f… off “.

Contrary to the respondent’s explanation for this utterance, the complainant refutes the assertion that it took her 30-40 minutes to prepare vegetables.

She believed that such a lack of respect left her with no option other than resignation.

 Concerning the respondent’s statement that the complainant was given to leaving the workplace early, she could not be sure of her exact leaving time on 19/11/2024.

She seeks compensation.

Cross examination of complainant.

She confirmed that she received the respondent’s letter to her of 26/11/24 advising her that she had not been dismissed.

She confirmed that there were just 2 staff on the premises on that day,

She confirmed that she was aware that the respondent manager needed to leave at 4pm on 19/11/2024. To the point that the complainant had not done the cleaning before leaving early on  that  date and had not uploaded the dishwasher, the complainant stated that no complaints about her work had been put to her before.

 She stated that she understood the statement F …off to be the same as a dismissal.

She cannot be 100% sure whether it was said at 3 or 4pm on 19/11/2024.

To the question as to why she did not take up the offer in the respondent’s letter of 26 November to return, she said she could not return having been shown such disrespect by the respondent. She stated that she was unable to contemplate working with the respondent again after that statement.

She confirmed that the respondent had spoken to her previously, not so much about timekeeping as about changing her shifts at short notice.

 The complainant confirmed that she contacted Revenue, and that she claimed job seekers’ benefit on the 20/11/12024.

Mitigation.

The complainant is not currently employed. She stated that she is not self-employed.

 She listed six applications which she had  submitted for jobs between the 29/11/2024 and 8/1/2025.

CA-00070196-003.Complaint under the Minimum Notice & Terms of Employment Act, 1973

The complainant did not receive her statutory notice payment on the termination of her employment.

She seeks payment of same.

CA-00070196-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The respondent concedes that they did not comply with section 3 of the Act of 1994 but did supply the complainant in December 2024 with said terms.

CA-00070196-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent contests this complaint of dismissal.

The complainant voluntarily resigned on 19/11/2024 and was not dismissed.

The respondent operates a modest sized Coffee Shop. The respondent employs approximately 5 to 6 employees including full-time and part-time positions.  

Evidence of the Owner given under affirmation.

The owner confirmed that she had told the complainant to f…. off. This came about as she needed to leave the café at 4pm on 19/11/2024 and had advised the complainant of this. The complainant’s shift was due to end at 3pm that day. The job was shared by herself and the complainant on 19/11/2024. There was workplace student placement present on the day who was unfamiliar with the needs of the café.

She had become increasingly frustrated with the complainant about her poor work attendance over a period of time. The complainant would text in to state that she would be 30 minutes late or that she wanted to change her shift. Her absenteeism was a cause of concern to the respondent. She told the witness that she was unable to clean floors, one of her duties, but provided no medical statement to explain this.

At 3pm on the 19/11/2024, the complainant was ready to leave but had not cleaned the floors or loaded the dishwasher and it was out of frustration that the told the complainant to F … off. She confirmed to the complainant that she was expected back at work.

The respondent stated that it was not her intention to dismiss her. She uttered that statement on the basis of frustration at the complainant’s performance.

She did not mean that she was fired and her roster with the same hours was there for the following days. She did not know that the complainant viewed the situation as a dismissal  and had resigned until she received her letter of 22/11/2024. She wrote to the complainant on 26/11/2024 and told her that she had not been dismissed and asked the complainant to confirm her return to work.

CA-00070196-003. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973,

The respondent states that the complainant voluntarily resigned without notice. She was not dismissed. She is not entitled to any notice.

Legal Submission.

The respondent relies on the case of Berber V Dunnes Stores (2009] IESC 10, where Finnegan J stated

“the conduct of the employer complained of must be unreasonable and without proper cause and it’s effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it such that the employee cannot be expected to put up with it.”   

The complainant did not ask the respondent to elaborate or clarify the meaning of the utterance “f…  off” and, in this regard, this of itself is a tacit acknowledgement that the words were uttered out of frustration, annoyance/irritation but with no intention to terminate as the complainant did not remonstrate or seek clarification with her employer in this regard.

In the case of Murray V Rockabill Shellfish Ltd.UD1832/2010 it was affirmed that 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 procedures laid down before taking the drastic step of resigning.

it is acknowledged that the employer did not provide a grievance procedure, but it is submitted that the complainant in resigning through Revenue Online on that day, did not act reasonably and/or contact her employer to seek clarification on the incident.

The once off utterance of the 19/11/12024 is not a dismissal.

The respondent requests that the complaint be dismissed.

CA-00067567-001. Complaint under Section 21 Equal Status Act, 2000

The complainant withdrew this complaint.

CA-00070196-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994

I find this complaint to be well founded.

In accordance with section 7(2) (d), I order the respondent to pay the complaint two weeks salary to the amount of €560 for this contravention of the Act of 1994.

CA-00070196-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The dismissal is in dispute and therefore it is for the complainant to establish that in the circumstances of this case, the dismissal was unfair.

I am obliged to consider if the complainant was justified in terminating her employment.

Relevant Law.

Constructive dismissal is defined in s 1. of the Unfair Dismissals Act, as:

“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 is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

In justifying her decision to terminate her employment the complainant will have to demonstrate that the circumstances of her dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) ICR 221 and described thus:

 “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 discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving”

These tests were followed in a line of Irish authorities.

In Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A.(1997) UKHL 23 where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. The Supreme Court stated:

“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”.

Applying the above tests to the circumstances of the instant case, the complainant’s case rests on what she maintains is the unreasonableness of the respondent’s conduct manifested in the statement made to her on the 19/11/10204 to f… off, and the respondent’s subsequent conduct.

The once -off utterance of F… off on its own might not be sufficient to sustain a complaint of a constructive dismissal, but what followed was silence on the respondent’s part with no apology in the context of the complainant’s absence from the workplace.  The complainant’s letter three days later on 22/11/2024 indicating  that she believed that the utterance meant that she had been dismissed and that she was no longer needed was met by a letter from the respondent on 26/11/12024, seeking confirmation of the complainant’s return to work, yet devoid of an apology or any recognition of the import of her statement and, in addition, containing an invitation to an investigatory meeting concerning the complainant’s absence.

An investigatory meeting may have been justified; but it would have been more prudent for the respondent to just inform the complainant that she had not been dismissed and acknowledge the unacceptable nature of the statement. An investigatory meeting could have followed on later.

There was no grievance procedure in place for the complainant to process what had happened on the 19/11/2024.

While it is reasonable for the respondent to expect the complainant to accept professional criticism or disappointment when she fails to meet expectations that is not a licence to deliver it in a demeaning or abusive manner.

This evidence leads me to conclude that the that the complainant was justified in concluding that her situation was untenable.

I find that the respondent’s conduct has enabled the complainant to meet the reasonableness test as set out in Western Excavating (ECC) v Sharp (1978) ICR 221.  

I find that the complainant was constructively dismissed.

Mitigation of Loss.

The complainant’s loss from the 19/11/2024-8/7/202 was €9420.

Section 7(2) (c)of the Act of 1977, as amended, requires that in considering the amount of compensation to be awarded, I must factor in the efforts made by the complainant to mitigate her loss.

In Sheehan v Continental Administration Co Ltd UD 858/1999 the Employment Appeals Tribunal considered the obligation to mitigate one’s loss and held that:

“A Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work … The time that a Complainant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

The Labour Court also set out the test for proof of efforts to mitigate one’s loss in the decision of Philip Smyth V Mark Leddy, UDD1974 as follows:

“The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

The evidence indicates the extremely meagre efforts made by the complainant to mitigate her loss The complainant’s negligible efforts do not meet the test set out in the decision of Philip Smyth V Mark Leddy.

Having considered all the evidence, I find the sum of €1500 to be fair and reasonable compensation for this contravention of the Act.

CA-00070196-003. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

As I have upheld the complainant’s complaint that she was constructively dismissed, I find this complaint to be well founded.

I find that the complainant is entitled to a week’s notice in accordance with section 4 (1) (a) of the Act of 1973,

CA-00067567-001. Complaint under Section 21 Equal Status Act, 2000.

The complainant formally withdrew this complaint.

CA-00070196-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

I decide that this complaint is well founded. I order the respondent to pay the sum of €560 to the complainant in compensation for this breach.

CA-00070196-002.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I decide that this complaint is well founded. I order the respondent to pay the sum of €1500 to the complainant being a sum which I believe to be just and equitable having regard to all the circumstances.

.

CA-00070196-003.Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

I decide that this complaint is well founded. I order the respondent to pay the complainant a week’s notice amounting to  the sum of €280 in compensation for this breach, subject to all lawful deductions.

Constructive dismissal.