Case Name: Ann Quane v Paco Life in Colour (UD1611/2010) (MN1540/2010).

Legislation: Uunfair Dismissal Acts, 1977 TO 2007; Minimum Notice and Terms of Employment Acts, 1973 TO 2005

Jurisdiction/Subject Matter: Constructive Dismissal; Unilateral Reduction of Pay


Facts

The claimant began working for the respondent in April 2004 as a sales assistant. When she began employment the claimant was given a contract of employment but was not given an employee handbook or a copy of any disciplinary procedures.

The Claimant was a dedicated worker and had not missed a day’s work during the 6 years she had worked for the respondent.

On 26 April 2010 the claimant was working in the respondent’s store alongside a co-worker. At approximately one hour before closing time the claimant’s co-worker told the claimant that she was not feeling very well and asked her if she minded if she left work early to visit her doctor. The claimant agreed that this was fine and the co-worker left work approximately one hour before closing time.

The following day the claimant arrived for work. The manager of the store, who herself had commenced employment with the respondent company six weeks beforehand, stated that she was annoyed with the claimant for allowing her co-worker leave work early the previous day. The Claimant apologised to the manager for letting her co-worker leave early but told her that in the past this had never been an issue. The claimant was very upset by this interaction with the manager.

Sometime later, a fax was received into the store. The manager presented the fax to the claimant and asked her to sign it. The document was a four page written warning to the claimant. The written warning outlined that the claimant had not followed company policy and procedures by allowing her co-worker to leave early. The written warning also stated that the shop was not being run as it should be and that there would be a review in this regard in one month’s time.

The week after she had received the written warning the claimant was brought to a coffee shop by the respondent area manager for a meeting. During this meeting the claimant asked the area manager if she was going to receive another written warning and the area manager told her she would if she did anything else wrong.

During the meeting, the claimant informed the area manager that she had not received a copy of the employee handbook.

The following Sunday the claimant was in the same coffee shop where the meeting with the area manager had taken place previously. While she was there the owner of the coffee shop presented the claimant with a copy of the written warning that she had been given previously and explained that the written warning had been left by the area manager in the coffee shop on the date of the meeting. The claimant was very distressed that the warning letter had been on public display. The claimant described how she was deeply upset and cried for weeks.

The next day, Monday, the claimant did not attend work. She received a telephone call from the area manager questioning why she had not phoned the area manager to let her know that she would not be in work. The claimant stated that she was not aware that she was required to call the area manager. The claimant believed that this highlighted that there was an agenda to get rid of her and stated that this had been the case with a previous manager also.

The claimant returned to work in the days following and continued to work as normal. During the course of the week an issue arose between the claimant and the manager in relation to a mirror that was unclean. The owner of the shop arrived and he, the manager and the area manager left to discuss the matter while the claimant looked after the shop.

When the group returned the owner of the shop informed the claimant that her pay would be cut. Again the claimant told the tribunal that she felt that this was a set up and the respondent wanted to get her to resign as they did not wish to employ older staff. The claimant outlined that she was the only staff member to have her pay cut.

The claimant stated that she was very stressed and could not continue to work for the respondent anymore. She submitted a letter of resignation to the respondent on 19 May 2010 stating that she would be resigning from her position as and from 26 May 2010. Upon receipt of the resignation letter the respondent called the claimant and indicated to her that her job was still open if she wished to return.

The evidence of the claimant was not contested by the respondent.


Determination

The Tribunal noted that the claimant’s evidence was uncontested.

The Tribunal stated that upon examination of the claimant’s uncontested evidence they judged that it was reasonable of the claimant to terminate her contract of employment with the respondent.

It followed then that the Tribunal upheld the claimants claim under the Unfair Dismissal Acts 1977 to 2007 and having heard evidence of the claimant’s loss arising from her dismissal, awarded her a compensatory sum of €20,000.

In relation to the claimant’s claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, the Tribunal stated that such a claim could not succeed as this was a case of constructive dismissal and as such the claimant had no entitlement under that Act.


Legal Review

The burden of proof in cases of constructive dismissal lies with the claimant. It is the claimant who must demonstrate to the Tribunal that, because of the conduct of the employer, they have no alternative other than resignation of their contract of employment.

In ordinary unfair dismissal cases the burden of proof lies with the respondent who must show that there were substantial grounds in existence to justify the termination of an employment contract.

In this case, although the evidence of the claimant was uncontested, it was still a requirement, for the claimant to persuade the Tribunal that it was reasonable of her to terminate her contract of employment with the respondent in light of the respondent’s poor behaviour. In this case the claimant successfully provided evidence to the effect that she was left with no other option that to resign her employment with the respondent.

The case also highlights that often a unilateral reduction in pay will constitute a material breach of a fundamental element of the contract of employment and may form the basis of a constructive dismissal appeal.

Full decision:
http://bit.ly/ONBTC0