EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Stephen Lyons UD5/2013
PW3/2013
- Appellant
against the recommendation of the Rights Commissioner in the case of:
Bord Na Mona PLC
- Respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr. N. Ormond
Mr C. Ryan
heard this appeal at Dublin on 26 February 2014 and 8 July 2014
Representation:
Appellant : Mr Stephen O’Sullivan B L instructed by
Kingsford, Solicitors, Suncroft Avenue, Strand Road, Portmarnock, Co Dublin
Respondent : Mr. Tim O'Connell, IBEC, 84/86 Lower Baggot Street, Dublin 2
This case came before the Tribunal by way of an appeal against the recommendation/decision of a Rights’ Commissioner References: r-120333-ud-12/DI and r-120331-pw-12-DI.
Appellant’s Case
The appellant commenced employment with the respondent on 7 January 2008 primarily as a conveyance solicitor. His signed contract of employment stated that he was employed on a fixed two year term. Among the details on that contract were references to a possible bonus payment and a pension contribution payable by both the appellant and the company. While he accepted that the bonus payment was not guaranteed the appellant acknowledged he received bonuses during the term of his initial contract. When that contract expired the appellant continued in his employment and deemed himself to be still working under that contract.
On 22 February 2010 the appellant received a letter from the manager of the respondent’s human resource section. That letter opened with the writer expressing pleasure at the extension of the appellant’s contract. He was also issued with a second contract with an expiry date of 6 January 2012. The appellant refused to sign that second contract as he objected to changes in the pension arrangements and bonus performance scheme. A revised contract issued in April 2010 and again the appellant did not sign it due to its pension provisions. By July 2010 the appellant felt compelled to sign a second contract. He wrote to the human resources’ manager stating that his signature to that contract was made under protest and duress and subject to the respondent’s grievance procedure being immediately initiated. The appellant told the Tribunal that the respondent informed him that unless he signed that second contract his employment would be terminated.
The appellant invoked the company’s grievance procedure in August 2010 by way of an e-mail to his line manager. The grievance related to the appellant’s renewed contract of employment and the changes therein from his first contract of employment. There were four stages to the grievance procedure. Since the appellant’s line manager was not in a position to deal with his grievance it was dealt with by the company secretary. This grievance ultimately petered out without any resolution. A year later the appellant again initiated another grievance and addressed his concerns in writing to the company secretary. He set out in detail seven issues and regarded the respondent’s treatment of him as unfair and unreasonable. The appellant received a written response from that secretary dated 31 August. In that reply the respondent effectively rejected the appellant’s complaints. He described as untrue and inaccurate the contents of that reply. He gave evidence that the company secretary told him that he could not progress his grievance to the final stage of the process (stage 4) as it would not be a good idea to appeal to the only other higher authority, the Chief Executive of the company. He gave evidence that the company secretary told him that would not be happening. In that context he did not progress his complaint to stage 4 of the process.
In a letter dated 2 September 2011 the appellant gave notice to the respondent that he was resigning his employment. Apart from being treated unfairly, the appellant also felt bullied and victimised by his employer. He concluded that the only option now open to him was to resign. In accepting that he did not utilise stage 4 of the grievance procedure the appellant reasoned that there was no point in doing so considering the secretary’s earlier comments and attitude towards his initial complaints.
The Tribunal heard evidence from the respondent company that the payment and amount of any bonus is at the sole discretion of the company. The company secretary gave evidence that he conducted an investigation into the grievances raised by the appellant. A detailed copy of his reply addressing the seven issues raised was opened to the Tribunal. He addressed the seven issues individually and concluded that the appellant’s grievances were not sustained and that the company had treated him fairly in relation to the issues involved. At no stage did the appellant provide him with instances of where he was undermined by his line manager. He informed him by way of the said letter that this concluded stage 3 of the grievance procedure and enclosed a copy of the grievance procedure for reference. Stage 4 of the grievance was available to the appellant if he wished to pursue the matter further. He gave evidence that he did not inform the appellant that he could not appeal the matter to the Chief Executive of the company. He never threatened the appellant with dismissal if he did not sign the contract of employment and gave evidence that it is company policy that all employees have a written contract of employment. He did not believe that it was necessary for the appellant to resign his position with the company.
Determination
The Tribunal after considering the evidence adduced at the hearing is of the view that the appellant did not reach the bar in a case of constructive dismissal. The Tribunal is not satisfied that the conduct of the respondent was so unreasonable as to make the appellant’s position untenable, thus the appeal under the Unfair Dismissals Acts 1977 to 2007 fails and the recommendation of the Rights Commissioner is upheld.
The Tribunal accepts that it has jurisdiction to hear the appeal under the Payment of Wages Act 1991. However in that regard the Tribunal finds that the payment of a bonus by the respondent company was discretionary and accordingly the said appeal fails and the decision of the Rights Commissioner is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)