ADJ-00000613

ADJUDICATION OFFICER DECISION

A Technician –V- A Service Company

Adjudication Decision Reference: ADJ-00000613

1. Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 04/03/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

2. Procedure:

2.1. In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

2.2. This complaint refers the alleged treatment of a service technician (the Complainant), by his employer, an energy service company, (the Respondent). The Complainant has come before the Adjudication Hearing having resigned from his position with the Respondent claiming that due to his treatment he had no option but to resign and was therefore constructively dismissed. In the circumstances, the onus is on the Complainant to satisfy the Hearing that he was unfairly dismissed.

2.3. The Respondent did not make a submission nor did they attend the hearing. The complaint is therefore not contested. The hearing therefore concentrated on the alleged actions of the Respondent in relation to how they handled the matters that arose between the parties as contended by the Complainant.

4. Complainant’s Submission and Presentation:

4.1. The Complainant was employed as a service technician on 5th January 2014. The Respondent’s main office is based in England with an office operating in Ireland. At the time of joining the Complainant reported to a local manager between January 2014 and up to his termination of employment in May 2015.

4.2. The Complainant was required to work on client sites around the country carrying out commissions and repairs of equipment. When the Complainant was not on site he was not required to attend the office. Notwithstanding when no client work was required he was asked by his manager to support the office administration work, and the Complainant facilitated these requests.

4.3. In September 2014 an office administrator joined the team which meant there were three people working from the office in Ireland.

4.4. From the outset the Complainant contended that he experienced difficult behaviour from his line manager, the Operations Manager. The Complainant contended that as a result of the issues he experienced he had to take sick leave due to stress in early November 2014 and he subsequently raised a grievance with the Respondent regarding his line manager’s behaviour. The Complainant stated that he initially raised his concerns to the HR manager in the UK office and he subsequently detailed his grievances to a company director over the phone.

4.5. The Complainant maintained that the Company Director followed up by email confirming that the he accepted the Complaint's request for formal grievance. However the Complainant contended that he received no feedback or outcome in relation to his grievance. The Complainant argued that this was contrary to stage three of the company’s grievance procedures which states that the outcome of the grievance procedure will be provided in writing.

4.6. The Claimant further asserted that between 20th November 2014 and 26th January 2015 he had no direct contact with his line manager. A performance review meeting then took place on 26th January 2015 where he attended the meeting with is line manager and two company directors from the UK. The Complainant maintained that this meeting went well and no issues of significance were brought to his attention at the meeting. If fact the Complainant advised that he received €2,000 Euro salary increase in the months previous to is performance review. He was due a further €2,000 Euro after his first years of service but this was not forthcoming at the time.

4.7. The Complainant alleged that shortly after the 26th January 2015 meeting, he again experienced issues and difficulties from his line manager, and specifically from 6th February 2015 onwards he began to experience "hassle". The Complainant stated that he was now receiving emails from the office administrator which he believed had been authored by his line manager. These emails were critical of him and inferred some wrongdoing in relation to his work. The Complainant also advised that on the 10th February 2015 he received an email to tell him he was to be subject to an on-site assessment from his line manager on 12th February 2015. He advised that this assessment should have taken place during his probation period the previous year.

4.8. The Complainant contended that during the assessment his line manager highlighted some 6 out of 16 assessment issues which were not completed. One of these issues included an observation that he was not wearing his overalls or personal protective equipment. The Complainant argued that before this assessment he would have been on suite visits with his line manager where neither the Complainant or the line manager would have worn this equipment. However he observed that on the day of the assessment his line manager did wear the equipment. Notwithstanding the Complainant acknowledged that he signed the assessment form noting the six observations.

4.9. The complainant also contended that following this event he also received an email from the administration officer enquiring as to why he had not informed the office he had arrived on a client site. He stated that on that day he had been held up in traffic in Dublin and had not arrived on site at the time of the e-mail. He further maintained that in general there is no set time to arrive on a specific site and his job requires him to stay on site to complete his work when he arrives. He advised that issues like this were not problems before but they were now being brought to his attention.

4.10. The Complainant further contended that on 23rd March 2015 he received an email outlining that he was to attend a meeting to respond to 3 alleged incidents, and that the outcome of this meeting may lead to disciplinary action.

4.11. He attended a meeting circa 7th April 2015 at the company’s office in the UK. At this meeting the Complainant asserted that his line manager accused him of wrongdoing, however the three issues he was accused of were not upheld. The Complainant contended that his line manager had created the issues as a consequence of his earlier grievance against his line manager.

4.12. The Complainant maintained that during the disciplinary meeting one of the Senior Directors of the company acknowledged that it was difficult relationship between the parties and advised them that they should address this matter between themselves going forward. The Complainant stated that whilst the outcome of the disciplinary meeting was that he was found not guilty of any wrongdoing he did not receive any written confirmation. Following the meeting he had and informal conversation with his line manager where he contended that his line manager told the Complainant that as a result of the grievance procedure that was raised in November 2014 he had suffered a drop in income and lost out on a €15,000 bonus payment. The Complainant was concerned when he heard this and began to lose further trust in how his relationship with his line manager would develop when he returned to Ireland.

4.13. When he returned to Ireland the Complainant said he continued with his work where there was no direct contact with his line manager. He alleged that a week later he received a call from the office administrator at 5 o'clock in the evening advising him to attend an emergency call at a client site. As the Complainant had personal arrangements already made he was not in a position to respond and was then told that a call to the site the following morning would be fine. When the Complainant called to the site the following day he was advised by the client that the equipment had been not been working for the last two days and it was not an emergency call. This caused further concern and stress to the Complainant as he felt his line manager was again trying to undermine him and create a situation which would lead to further unwarranted disciplinary action.

4.14. At this stage the complainant had lost complete trust in his employer as he had not received a satisfactory outcome to his grievance in November 2014, and had already been brought through a disciplinary process based on false allegations that were not upheld. The Complainant contended that as he had not received a satisfactory response to his grievance or any concrete response from the disciplinary process, and as he was now experiencing what he believed was harassment from his line manager he felt his line manager could continue to behave towards him in this way unchecked. As he had already taken sick leave due to the stress of this situation in November 2014 he contended that the current situation made his position untenable where he had no option but to resign.

4.15. Following his departure the Complainant found alternative work some four weeks later, albeit not in his area of work for a lower wage.

5. Respondent’s Submission and Presentation:

5.1. The Respondent did not respond to the complaint nor did they attend the hearing. The complaint is therefore uncontested.

6. Decision

6.1. Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim contrary to Section 6 of the Act, and consisting of a grant of redress in accordance with section 7 of the 1977 Act.

6.2. Constructive dismissal, which is defined in Section 1 of the Unfair Dismissals Act 1977 as: “”dismissal”, in relation to an employee, means—

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

6.3. The burden of proof rests on the Complainant to show that he had no choice but to leave his position with the Respondent. He must show that his resignation was not voluntary and that the conduct of his employer was so unreasonable that he had no choice but to resign. Furthermore, it is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.

6.4. Based on the evidence provided the Adjudication is of the opinion that the Respondent has failed the Complainant. There was no record of the Respondent handling the Complainant’s grievance properly. The grievance should have been treated seriously in light of the fact the Complainant had been off sick due to the conditions he was experiencing from his line manager. When he advised HR and subsequently he spoke with a company director in the Respondent’s UK office the Complainant had every reason to believe matters would be resolved. The Complainant did not receive any written outcome from his grievance.

6.5. Furthermore the Complainant attended a disciplinary procedure some months after raising his grievance where the evidence presented indicated there was no case to answer. The disciplinary procedure related to allegations raised by the Complaint’s line manager, the very person he had raised a grievance against. Similar to the grievance procedure, and based on the uncontested evidence, the Respondent also failed to confirm in writing to the Complainant that he had no case to answer.

6.6. It appears remarkable that based on the history between the Complainant and the line manager, and the assertion that the Complainant had already taken sick leave due to the relationship between them, that a Company Director would suggest to the Complainant after the disciplinary procedure that the parties should address the matter between themselves going forward. The evidence presented indicated that rather than matters being resolved they became worse for the Complainant where he began to experience calls from the administration office which he believed were being orchestrated by his line manager. As it was a small office in Ireland, with no other staff than the Complainant, his line manager and an office administrator, the Complaint began to feel his line manager had in effect a free reign to intimidate him.

6.7. In effect the Respondent took no meaningful action in relation to the issues raised by the Complainant. In such circumstances the Respondent failed in a fundamental duty to the Complainant, and the Complainant could not have been expected to have faith and trust in the relationship going forward. In all of the circumstances, the Adjudication is of the opinion that it was reasonable of the Complainant to resign from his position and consider himself constructively dismissed.

6.8. The Adjudication awards the claimant the sum of €4,000 under the Unfair Dismissals Acts, 1977 to 2007.

Dated: 26th April 2016