EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Dharmendra Ojha – claimant UD848/2013
Against
Harry Corry Limited – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr J. Goulding
Mr N. Dowling
heard this claim at Dublin on 29th July 2014, 10th November 2014 and 11th November 2014
Representation:
_______________
Claimant: Mr Darach McNamara BL, instructed by:
Mr Kevin Jolley, Blake Horrigan, Solicitors
Mc Keever House, 4/5 Ushers Court, Ushers Quay, Dublin 8
Respondent: Ms Paula O’Hanlon, IBEC
Confederation House, 84/86 Lower Baggot Street, Dublin 2
Determination:
The Tribunal has carefully considered the evidence adduced over the course of three days. The claimant brings a claim under the Unfair Dismissals legislation and in particular claims that he was constructively dismissed. The dismissal was effected when he handed in a letter of resignation to the HR department of the respondent company on the 13th March 2013.
As with all constructive dismissal type cases the burden of proof shifts to the employee who must demonstrate to the Tribunal that his act of resignation was justified and was reasonable in all the circumstances.
The Tribunal has noted that in the letter of resignation the claimant has, in particular, stated that the reasons for his resignation are as a result of being “a victim of racism and harassment within the company”. The workplace relations complaint form is stamped 11th June 2013 and as it falls within the six months post termination of employment the Tribunal has jurisdiction to hear the case.
The claimant commenced his employment with the respondent company in and around November 2009. The claimant had an impressive resumé and had worked in the retail sector for some years prior to his time with the respondent company. The claimant was given the position of store manager from the start and was placed in the respondent’s retail unit in the Nutgrove Shopping Centre.
The claimant would have been expected to manage up to eight people and was responsible for the daily functioning of the store, subject to such outside scrutiny and direction as may have been imposed. The Nutgrove store is one of 22 similar stores owned by the respondent throughout the country.
The claimant, in his evidence, spent some time describing events which the Tribunal found to have no relevance to the events which ultimately gave rise to the termination of employment but the Tribunal recognises that the pre-history does demonstrate a hardworking and enthusiastic employee.
By the summer of 2011 the respondent, at a macro level was turning it’s attention to the Nutgrove store performance. Witnesses for the respondent gave evidence to the effect that the well documented economic climate was having a negative effect on the company turnover and the need to try and remedy dropping sales was being implemented across the board.
The respondent’s witness AC gave evidence to the effect that she became concerned about the claimants management style and performance following on from observations made at an interaction training session on 13th June 2011 and an interview process she and the claimant conducted on the 25th June 2011.
There can be no doubt that AC linked the bad performance of the Nutgove store with the apparent laissez faire attitude of the claimant’s management style. AC wrote a letter on the 15th August 2011 setting out the perceived shortcomings and underperformance and advising that a general improvement was absolutely necessary. The Tribunal finds that this letter, as well as a follow up letter of the 16th January 2012, were not unacceptable in their tone and direction. AC had the authority within the company to demand as high a standard of performance as she did. These letters were not unreasonable and whilst the Tribunal might find that the reference to the disciplinary process might have appeared to be somewhat overbearing, AC in her evidence was adamant that this was only ever mentioned in an advisory way and she never referred the claimant to a disciplinary process.
It is noted that sales and commission rates had improved for a three week period in December 2011 and AC gave credit to the claimant for that fact, which came in the aftermath of the Nutgove Action Plan having being signed off on by all staff.
In and around February 2012 an important audit was performed in the store which meant that two external persons from HR spent a number of days in the Nutgrove office going through all aspects of the store. Arising out of this audit the claimant was subjected to an investigative and disciplinary process, stemming from his time keeping, unauthorised absences and the failure to deposit daily takings. A list of these infractions were given to the claimant and after the investigation, conducted by LP on 8th February 2012, the matter came before the HR manager at a disciplinary meeting on the 17th February 2012.
By letter dated 23rd February 2012, the HR manger found that the claimant had fraudulently misrepresented his hours on his time sheets and he had failed to inform finance of his lapses in making lodgements. The behaviour constituted gross misconduct although the HR manager chose not to dismiss but opted for the lesser sanction of demotion to the role of supervisor. The demotion had significant financial consequences for the claimant.
The Tribunal notes that the respondent proposed that the company would be happy to arrange for an occupational psychologist to assist with the transition period. The Tribunal further notes that the claimant was clearly notified of his right to appeal the findings of the decision maker and whilst the name of the proposed person to deal with such an appeal was nominated to be one of the directors of the company, the Tribunal can never know whether an alternative would have been considered as a notice of appeal was not delivered within the time specified.
The claimant gave evidence to the effect that he had faxed an appeal to the decision to demote him to the respondent and the respondent gave evidence that no such notice of appeal was received by them.
The Tribunal has to find that the obligation to ensure that the appeal reached the respondent lay solely with the claimant and in circumstances where there can be no doubt that at all times the respondent company was not neglectful or slow in communicating with the claimant he should have been alerted to the fact that they had not received the notice of appeal long before he claims he did. In particular, the Tribunal notes that the claimant accepted that the HR department had phoned him regarding the time frame for making such an appeal.
The Tribunal therefore finds that the respondent was not unreasonable in assuming that the claimant had accepted his demotion and this is so explained in light of the fact that the claimant continued to work, in his capacity of supervisor, for the next three or four months.
On the 6th June 2012 the claimant instructed his solicitor to write to the respondent employer advising that the claimant “seeks to appeal every aspect of the disciplinary procedure”. This letter may have been in response to a customer complaint at issue. The respondent’s reply sets out comprehensively the nature of the complaint, the procedures utilised and the decision made. MC on behalf of the respondent points out that the time for appeal has passed and that the parties have moved on. The matter rested there and no further solicitor’s letter was received, no further action was taken.
Nothing further passed between employer and employee until some six months later in December 2012 when the claimant was asked to attend the respondent’s store in Blanchardstown for the period of time in the run up to Christmas. The Tribunal heard evidence to the effect that the Banchardstown store is about the busiest in Ireland and was in need of some experienced staff to get it through the busy period. JH the general manager at whose direction the claimant was sent to Blanchardstown stated in evidence that despite the demotion the company still recognised the ability, training and experience that the claimant possessed.
It is clear from the contract of employment that the claimant produced that the company expected the employee to be flexible in terms of his work location and whilst the Tribunal would have to recognise that a proposed re-location would have to be reasonable to avoid contract frustration, the Tribunal cannot find that the request to attend Blanchardstown instead of Nutgrove was unreasonable or onerous.
The claimant resisted the initial temporary and subsequent permanent re-location to the Blanchardstown premises. He raised objections to the journey time and the extra expense he encountered. The respondent did not ignore these issues and sought to understand his difficulties and alleviate same, however the decision to move the claimant had become irreversible.
During the first three months of 2013 it is clear from the evidence adduced that the claimant became increasingly stressed by the interaction between himself and his superiors. It is noted that despite an invitation to do so, the claimant did not avail himself of any mediation or grievance procedure.
On 13th March 2013 the claimant sent his own letter of resignation to the HR department. The Tribunal accepts that the letter was penned in frustration and in light of the evidence heard accepts that there is no basis for the accusations of racism and harassment.
The Tribunal would further go on to say that the trigger for delivery of the said letter of resignation was the perceived unreasonableness of the re-location of the claimant from one shop to another. The Tribunal therefor makes a finding that the pre-history, including the early intervention of AC and the subsequent disciplinary sanctions imposed by HC has no real bearing on the actual decision to resign other than to ascribe to a general sense of discontent that the claimant alone may well have felt.
The Tribunal must conclude that the claimant was unreasonable in tendering his resignation as he was only doing it in response to a perfectly reasonable request (and a contractual requirement) to move the claimant from one store to another.
Accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)