UD1146/2011, WT467/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

EMPLOYEE                                                                                                                          UD1146/2011       WT467/2011

against

EMPLOYER

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr J.  Smith

Members:     Mr D.  Morrison

                     Ms R.  Kerrigan

heard this claim at Letterkenny on 29th November 2012 and 7th March 2013

Representation:

Claimant

Respondent:   

The claim under the Organisation of Working Time Act, 1997, was withdrawn at the outset

Claimant’s Case

The claimant DM gave evidence that he was hired by the respondent as a software engineer to re-write an existing system. The position involved moving clients from an old system to a new one he was creating and when the job was complete someone with less experience could be able to run it.

It was a full time position, he received no contract or terms of employment but he assumed it was a regular job. His wife also worked for the same company and he felt that when she was dismissed from the respondent things went down-hill for him.

DM was answerable to NP who was based in America and dealt with him by telephone or software. Initially he had no office and worked from home. He would be connected to Delaware in the U.S.A. via software and was on call 24/7 one week in every four. As far as the claimant was aware there were 3 other employees.

 Issues arose where DM was told that medical emergencies or sick leave would be deducted as annual leave, administration was based in America and he was directed to the shared drive which contained an American document. He queried the fact that sick leave was to be deducted from annual leave, he spoke with NP and asked that this not happen.

DM was then required to track/account for his own time at 15 min intervals over an 8 hour period, for each day from February 2011. This meant he had to access the database a minimum of 10/12 times per day and so had to spend a percentage of his day accounting for his day.

NP arrived in Ireland following the telephone conversation regarding the annual leave/sick leave queries. At a meeting with NP he was told he was not acting as a team player and should be doing more hours (up to 45 per week), he was not working fast enough and was not good enough. Nobody had told him in advance what the meeting was about and he had no opportunity to take someone with him to that meeting. The meeting concluded with DM saying “you have made it obvious there is nothing here for me” and was then asked by NP if the wanted to make today his last day. The claimant said he would work out his notice but later withdrew this statement. He had no written warnings and considered the only reason that NP came to Ireland was to persuade him to leave the company.  

Under cross examination the claimant said that he believed he was dismissed because the project had come to an end, he was definitely encouraged to leave. He didn’t know if it was Jekell or Hyde who would be on the telephone when he spoke with NP. DM was asked if his wife was on a temporary contract that had come to an end, He said that his wife had been dismissed from the company the previous Christmas, NP attempted to re-hire her and maybe he was upset because she refused to return. Asked if his wife had worked for 4 days in February the claimant said he maybe but he doubted it. If it was true, there was an offer of a job with lesser pay. She had nothing to do with the respondent anymore. Asked about regular inaccuracies in his time keeping and failure to enter his times for months the claimant replied “ok”. 

Regarding the incident with a colleague EB the claimant said that she sent an incorrect e-mail to a client and he told her so. EB stomped up and down and used profanities at him. She was spoken to by NP and did apologise but he (DM) was asked/told to placate her. He didn’t remember the reaction of NP when he told him he was leaving.   

Respondent’s Case:

The Managing Director (NP) gave evidence.  The company had offices in the Republic of Ireland, Northern Ireland and Delaware, U.S.A. The majority of the claimant’s time was spent working on one project.  He set his own targets but sometimes did not make them. 

There were no prior problems with the claimant.  However there had been a verbal incident between the claimant and a colleague (EB).  NP spoke to both parties but neither were given a written warning.

On April 27^th 2011 NP received an email from the claimant regarding sick leave and trips to the doctor.  NP rang the claimant and had a 45-minute conversation with him.  This was usual as NP spoke weekly to all his staff.  After the call NP decided to fly to Ireland and arrived the following day – Thursday 28^th April 2011. 

He met first with EB and then the claimant.  They spoke in the conference room concerning a deadline the claimant had set for himself but had not met the previous Friday.   The claimant told NP that it was time for him DM,  to leave the respondent company.  NP was shocked and surprised and told the claimant it was his decision and that the job was still there for him.   The claimant said he would work out his two weeks’ notice.  The meeting lasted about 30 minutes. 

NP then met with a colleague of the claimants and told him the claimant had resigned.  At around 5 p.m. the claimant asked to speak again to NP.  The claimant informed him he was not going to work his notice and would leave that day. 

Under cross examination NP stated that the claimant did not have a contract of employment and there was no grievance procedure in place. The claimant had no prior knowledge of the meeting and was not offered an opportunity to bring anyone with him.  He was replaced 6 weeks later by a person that was based in Derry city.

Determination:

Dissenting opinion of Mr D. Morrison

This was a case of constructive dismissal and in such cases a high level of proof in needed to justify the claimant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary.

There are two tests in the statutory definition wither or both of which may be invoked by and employee.

1.      Contract test, i.e. if an employee argues the entitlement to terminate the contract because of a fundamental breach of contract on the part of the employer. The breach of contract being alleged must be either a sufficient breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more or the essential terms of the contract

2.      Reasonable test: i.e. that the conduct of the employer is such that it was reasonable for him to resign.

The absence of a written contract of employment and grievance procedure does not entitle an  employee to terminate their employment. That doesn’t mean in itself that there was a breach of contract.

Earlier in the employment there was an incident between EB and the claimant. This was dealt with by the employer NP via a teleconference and the claimant was well able to articulate his views in this regard. This being the case I cannot accept that the claimant would not be able to bring any further grievance to the attention of the employer, allowing him the opportunity to address any outstanding issues.

There was a conflict of evidence as to the claimant’s wife’s employment and her alleged dismissal. However it was not contested that his wife returned to work in February for 3.5 hours to finish a specific job. She was paid by the employer for the work carried out even though she said she didn’t want payment for it. This does not seem like the action of an intolerable employer, neither does it seem like the actions of a person previously dismissed at Christmas.

Having carefully considered the evidence and submissions in this case I find that the claimant has not successfully discharged the onus of proof as required under the Act and therefore the claim under the Unfair Dismissals Acts, 1977 to 2007 fails in my opinion.         

Majority decision:

After considering all the oral evidence and submissions tendered by both parties the majority of the Tribunal were of opinion that the conduct of the employer was such that the employee resigned involuntarily and was therefore constructively dismissed.

The claimant is a trained computer engineer. The Managing Director had put the claimant under extreme pressure to meet deadlines and had installed a tracking system to describe his actions every fifteen minutes.   When he had difficulty with a female employee he was told to placate her and no further support was given to him on the issue.  In particular the final meeting that the Managing Director had with the claimant NP came from New York without informing the claimant and insufficient time was given to prepare for the meeting.

 Although the absence of a written contract or grievance procedure may not constitute a breach the majority were of opinion that in this case the absence of a contract and grievance procedure was fundamental as the employer, NP, was based in the United States of America.

By a majority decision the Tribunal finds the claimant was constructively dismissed and awards him the sum of € 9,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)