EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
William Hendrick UD934/2014
-claimant
against
Wincor Nixdorf Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Ms J. Winters
Mr. J. Flannery
heard this claim at Dublin on 23rd July 2015
and 2nd October 2015
Representation:
Claimant: Ms Rithika Moore Vaderaa BL instructed by Mr John Greene,
PC Moore, Solicitors, 39 Westland Row, Dublin 2
Respondent: Mr. Ian O’Herilihy Mason Hayes & Curran, Solicitors,
South Bank House, Barrow Street, Dublin 4
Claimant’s case:
The claimant’s case is one of constructive dismissal in respect of his employment with the respondent from October 2010 to April 2014. The claimant is an IT specialist and started his employment with the respondent in August 2010 on a one year contact. Initially he worked on the front line help desk and subsequently moved into an IT support role. He had a number of consecutive fixed term contracts and was ultimately offered a permanent contract which he signed in January 2015, albeit he states he did so under protest.
Since January 2013 the claimant had been seconded to an IT support role (as opposed to the helpdesk role) which was more involved with server maintenance, applications, liaising with head office, testing software etc. This was a role he liked and he felt that there could be further opportunities for him. The role was initially for a period of 6 months but was extended. As part of this secondment he was given a pay increase and he states that his hours were 37.5 per week over a 5 day week. The claimant indicated that his manager at the time verbally sanctioned 37.5 hours per week as opposed to 40 hours. In addition he was entitled to overtime at the double time rate (as per his original fixed term contract). The claimant stated that he expressed concern to management that he did not have a permanent contract and he felt he was still bound by the terms of his January 2013 fixed term contract as a ‘helpdesk agent’. He wanted more security in his job and clarity of his role.
In or about 9th December 2013 his status changed from fixed term to permanent on an internal email sever which he stated was done without his knowledge and without him being presented with a permanent contract. The claimant took some personal time off in mid - December 2013 and intended returning to work in January 2014. On his return he was told that he would receive his new permanent contract which would be on ‘the same terms and conditions’. He took this to mean the terms and conditions he was previously on. When presented with the printed document in or about 15th January 2014 he stated that there were changes to the said terms and conditions including the removal of double time, change from 37.5 hours to 40 hours to be worked over 7 days as opposed to 5 days and the removal of a lunch break.
He was quite distressed at this and approached his manager NM asking whether there was anything he could do. NM stated that he would speak with HR but the claimant heard nothing further. The claimant indicated that he proceeded to sign the permanent contract but states he did so under protest. He was afraid that if he did not sign it the offer would be revoked and he would revert to fixed term status on the same terms as set out in the permanent contract. It is disputed by the respondent that the claimant ever told HR that he was signing this contract under protest.
Throughout February 2014 the claimant continued in his work but only worked the hours from his previous fixed term contract i.e .37.5. In March the double time rate was abolished and set at time and a half. The claimant felt that this was unacceptable given some of his work, pursuant to his new contract, was done out of hours and/or during the night.
The claimant gave evidence that he wanted to be on the same terms and conditions as a colleague WB who, for example, he believed was not asked to do the unsociable hours the claimant was asked to do. One of the claimant’s main issue was that he was changing to a seven-day working pattern but WB was remaining on a five-day pattern which excluded weekends. He brought this to the attention of management and HR on a number of occasions but he feels he never got a satisfactory response. When cross examined on this point the claimant did accept however that the respondent may not be in a position to discuss other employees with him.
The claimant emailed LL in HR on 3rd March 2013 raising certain issues he was unhappy with including the rate of pay at double time, his role as IT support and his hours of work. At a meeting of 4th March 2013 the claimant met with LL and TR to discuss the said email. It was agreed on 5th March 2013 that the double time pay would be restored however the claimant was still unhappy. He stated that LL indicated that she would ignore any recommendation made in that regard. He felt that he had no confidence in management and that he was being fobbed off. He stated that he felt pressured into working extra hours, that WB did not have to do this and that his contract was non-negotiable and therefore he had no choice. On 7th March 2014 the claimant stated that he told TR that he had now raised a complaint with Workplace Relations and that he would no longer be entering into any dialogue with LL or attending any meetings. By email of 11th March 2014 he confirmed this position to NM.
On 8th April 2014 TR called the claimant into an unscheduled meeting wherein he states he was told there were two ‘complaints’ against him. He stated that he did not understand the purpose of the meeting and was shocked and angry at the manner this was being dealt with. He was not told who the complaints were made by, only that he was now being ‘watched. He felt that the stress he was experiencing at work was only compounded by these accusations. He felt that at this stage he could not go back to work and that his only option was legal action against his employer. The claimant stated that at no stage was he referred to the company handbook or grievance procedure nor advised of any option to appeal. He felt that there was no desire from the company to resolve his issues internally. On 8th April 2014 he emailed senior management stating that because he manner in which his terms and conditions of employment was being handled was having a direct impact on his well-being he could no longer continue in role. He therefore resigned his position
Respondent’s case:
The Human Resources Manager, LL, outlined in evidence that when she commenced working in her position she approached head office with a view to changing all fixed-term contracts to permanent contracts. In December 2013 she received final confirmation to proceed with this action. She considered it a positive development for staff and the result has been an increase from 60 to 150 permanent employees in a three-year period. Certain terms and conditions changed in the permanent contracts but this was necessary in order to meet the growing needs of the business.
The permanent contracts were drafted by her in December 2013 and she presented the claimant with the contract on his return to work in January 2014 following a period of compassionate leave. She was cognisant of the claimant’s recent bereavement and told him to take time to consider the contract and not to sign it there and then. She recalled telling the claimant that the permanent contract was very similar to the fixed-term contract but with some changes to working hours which she outlined to him. This was refuted by the claimant in cross-examination. The witness explained that the change in hours was to accommodate customer requirements. During cross-examination she accepted that it was a change for the claimant to work weekend days when previously he did not have to but rotas would be in place to ensure this work would be as infrequent as possible for affected employees. She also accepted that the claimant’s previous fixed term contract had ended on the 3rd November 2013 and therefore the fixed-term contract had expired at that time.
The claimant’s line manager, TR, informed LL that the claimant had signed the contract in mid-January 2014 and an email followed from the claimant himself confirming he had signed it. During cross-examination she did not accept that the claimant told her that he was signing the contract under protest. The only query he raised was that concerning his status on the computer and email systems being altered to reflect his permanency. As no other issues were raised by the claimant LL genuinely believed throughout January and February 2014 that there were no outstanding issues regarding the contract.
Having received the claimant’s email dated 3rd March 2014 setting out his issues LL and TR held a meeting with him on 4th March as she understood this email to be a grievance of sorts. At the meeting the issues raised by the claimant were discussed. He had accepted during cross-examination that he told LL that payment of double-time for Sundays would “go a long way” but he added that night time working hours were his main issue. LL denied that she had told him at this meeting that she would ignore any recommendation from the Workplace Relations Commission on the matter. LL believed that the claimant was fixated on WB’s contract particularly at the meeting on 4th March 2013. At this meeting the claimant wanted to know the nature and terms of WB’s contract but the LL told him she could not discuss another employees contract with him. LL agreed to discuss the issue of double time with NM, which she did. NM recommended restoring the payment of double-time and the Helpdesk Manager agreed with her recommendation. In relation to the hours of work it was not accepted that the claimant was entitled to work 37.5 hours as opposed to 40 hours and if a previous manager had said that to him LL was not aware of it. Furthermore, there was no documentation to support that representation.
On the 5th March 2014 LL held another meeting with the claimant to tell him double-time pay would be reinstated. . It was her understanding that this alleviated the claimant’s concern in this regard. By email dated 6th March 2014 LL responded to each of the matters raised in the claimant’s mail of 3rd March 2014. LL addressed the issue of the claimants hours of work wherein she accepted that he may be asked to work unsocial hours as per the contract but she believed this would be a very rare occurrence. She stated in the email that if he was refusing to work the said hours then alternative arrangements for cover would be made. However, if he was happy to work the said hours it was agreed that double time would be paid to him. LL further stated that if the permanent contract and its terms were not acceptable to the claimant then he had the option of reverting to his previous fixed term contract. If the claimant was unhappy with her responses it was open to him to discuss matters further with her. LL indicated that she understood the grievance had been dealt with as she heard nothing further from the claimant. .
LL stated that the claimant was a key employee to the business and had written an important computer program for the company. It was therefore very disappointing when the claimant then resigned in April 2014 without giving LL an opportunity to discuss matters further.
During cross-examination she confirmed that she did offer to revert the claimant to his original fixed-term contract if the permanent contract was unsuitable to him. However, she accepted that the company could not have offered the claimant another fixed-term contract as he would beyond over the four-year period permissibly by legislation.
The claimant’s line manager TR gave evidence. She recalled attending a meeting at which the claimant repeatedly referred to the issue of like-for-like work with his colleague (WB) and that their terms and conditions should be the same. The claimant was extremely frustrated at the meeting and at times he came across as aggressive and she recalled him hitting the table during the meeting. Similar evidence was proffered by LL. The claimant refuted this in his evidence stating that he had not lost his temper; he was livid but composed
When TR held a further meeting with the claimant on the 8th April 2014 she informed him that she had received two informal complaints about him. She did not name the individuals to the claimant as they were informal complaints. TR felt the claimant needed to know about the complaints as another employee was both worried about the claimant but affected negatively by his behaviour. TR felt that the claimant’s performance was influenced by the issues he was raising and that if he was aware of the informal complaints he could act accordingly. During cross-examination she refuted that she told the claimant that he was being watched but she did tell him that other employees found him irritable and difficult to work with.
Determination:
The Tribunal carefully considered the evidence given in this claim. 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”.
The burden of proof rests on him to show that he had no choice but to leave his position with the respondent. He must show the Tribunal 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. Unfortunately, the Tribunal feels that the claimant did not discharge the burden of proof in this case.
From the evidence given it appears, from the claimant’s point of view that matters escalated in or about January 2014. He was presented with a permanent contract and was unhappy with certain terms contained therein. It appeared to the Tribunal from the evidence given that the claimant’s two main issues on the new contract were the rates of pay and the issue of unsocial hours and potential weekend work. He had previously been on a five day week and now was required to be available for seven days. It is accepted by the respondent that some of the claimant’s terms and conditions were changed which LL stated was to meet the needs of the business. The claimant raised his issues by email dated 3rd March 2014 which was responded to by email dated 6th March 2014, having had a meeting on 4th March with LL. The respondent acquiesced to his request for double-time payment but if he didn’t want to work the unsocial hours (paying double time) he didn’t have to and alternative cover would be arranged. He he also offered the opportunity to revert to his old contract. No response was received from the claimant and LL understood the informal grievance to be concluded. In fact, following this the claimant told TR and NM that he no would no longer enter into any dialogue with the respondent and would not be attending any further meetings. It seems to the Tribunal that the claimant was only prepared to engage with the respondent on his own terms. Whether or not the grievance concluded or an appeal was offered is somewhat redundant in light of the fact that the claimant was not prepared to engage any further.
In the circumstances the Tribunal does not believe that the claimant exhausted all internal remedies available to him. From 7th March onwards he stopped engaging at all. Furthermore, The Tribunal does not believe that he has made out a case that the respondent’s internal procedures were inherently unfair. The Tribunal believes that the issue of alleged complaints made against the claimant was handled badly by the respondent on 8th April 2014. Simply mentioning complaints were made but providing no substance in relation to same is not acceptable. However, given the claimant resigned the same day he gave no opportunity to the respondent to address any issue he may have had in this regard.
Submissions were made by Counsel for the claimant in relation to the status of his fixed term contracts and whether he was entitled to a contract for indefinite duration on his old terms and conditions rather than the permanent contract signed in January 2015. The Tribunal believe that it is bound by the evidence heard in the within case and the contract of employment that was terminated by the claimant on 8th April 2014 was that which was digitally signed by him on 17th January 2014 and not otherwise.
The Tribunal is unanimous in finding that the claimant did not discharge the onus of proof placed upon him to establish a case for constructive dismissal. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)