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Employee Loses Constructive Dismissal Claim but Receives an Award as Employer Failed to Prevent Employee Working Excessive Hours

The Melissa Moran v C.h Kane Ltd Supervalu[1] case comprised of two complaints to the Workplace Relations Commission (“WRC”). These were under the Organisation of Working Time Act 1997 and the Unfair Dismissals Act 1977 respectively.

Facts: The Complainant (Ms Moran) was employed by the Respondent (C.h. Ltd Supervalu) for nearly five years. Ms. Moran commenced employment with the Respondent in February 2016 as a Sales Assistant and progressed to the role of Trainee Assistant Manager in October 2019. The Complainant’s father was ill and she requested split shifts on days she was doing lockups, as she was responsible for her father’s medication.  The Respondent claimed this would not work due to the demands of the business during hours she would be absent. The Complainant resigned from her position and alleged that the failure of the Respondent to facilitate her with daily hours to enable her to tend to her relative, amounted to constructive dismissal.

Ms. Moran also alleged she was expected to work over 50 hours every week 6 days a week, with issues ongoing ever since she took on the role of Trainee Assistant Manager. While the Complainant was told her expected weekly hours would be 45 hours, she highlighted that the workload given to her could not be done in that timeframe. The Respondent argued that Ms. Moran was never required or requested to work beyond her contracted weekly hours and she was asked not to come into the store when she was not rostered on several occasions.

Issues to be Decided: In respect of the Unfair Dismissal claim, the issue was whether the test for constructive dismissal was met. The first test for constructive dismissal is the “contract” test where an essential term of the contract must be breached. This term must go the root of the contract. The second test that can be relied upon is the “reasonableness” test. This asks whether the employer conducted itself so unreasonably that the employee cannot fairly be expected to put up with it any longer.

In relation to the Organisation of Working Time Act claim, the question was whether the employer was liable for non-compliance when the employee did the additional hours of her own volition and contrary to directions not to do so.

Decision: The Adjudication Officer (“AO”) concluded the Complainant was not unfairly dismissed. There was no evidence of a breach of contract by the Respondent which could give rise to a justified repudiation of the contract. There was nothing in the contract that entitled the Complainant to work a split shift or evidence of a verbal agreement to that effect. In applying the reasonableness test, the AO considered the key question was the extent the appropriate grievance procedures were open to the Complainant and whether they were used to resolve her issues. It was found the Complainant was aware of the grievance procedure and did not use it. The John Travers v MBNA Ireland Limited[2] decisionwas considered where the Labour Court decided:

 “In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In respect of the Organisation of Working Time claim, the AO found that the onus for compliance with the Act ultimately rests on the employer and not the employee, even where the employee worked excessive hours or omitted to take breaks willingly. The AO held that the Respondent employer did not do enough to stop the Complainant working excessive hours and did not adequately monitor the Complainant’s attendance pattern in order to ensure she did not work in excess of the permitted hours under the Organisation of Working Time Act. Evidence submitted by the Complainant showed her average hours worked exceeded the permittable hours and this complaint was upheld. Ms. Moran was awarded €3,000 in compensation.

Takeaway for Employers: The fact the Complainant was aware of the internal grievance procedure and did not use it proved fatal to her claim of constructive dismissal. Interestingly in 2020 an employee won a constructive dismissal case in the Labour Court in Rehab Group v Roberts[3], where internal processes were not exhausted. However the Labour Court highlighted that the employer in question did not follow their own procedures and showed a lack of care towards the employee. It is important for employers to have a grievance policy in place where issues in relation to terms and conditions of employment can be raised and resolved internally prior to any legal proceedings. This policy should be communicated widely with employees and strictly followed.

In relation to the complaint that was upheld it is important to be aware that ultimately the duty for compliance with the Organisation of Working Time Act 1997 rests with employers. The AO referred to the Labour Court decision in Svodboda v IBM Ireland[4], where due to the employer’s bona fide efforts to stop the Claimant working excessive hours the Labour Court held that the breach was only a technical breach. The Organisation of Working Time Act 1997 provides that an employer shall not permit an employee to work more than 48 hours a week. Therefore employers are obligated to actively prevent an employee working more than the permitted hours. It is clear in this case the AO was not convinced that the Respondent took sufficient action to monitor Ms Moran’s attendance pattern and prevent her working excessive hours. Employers need to ensure to have an adequate system of monitoring attendance and to do as much as reasonably possible to prevent employees working excessive hours.

Link  – https://www.workplacerelations.ie/en/cases/2022/june/adj-00031662.html

[1] ADJ-00031662

[2] UD720/2006

[3] UD/19/100

[4] DWT0818

Authors – Tara Kelly and Anne O’Connell

30th June 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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