ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001011

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

Date of AdjudicationHearing: 31/05/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) 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).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The respondent has no record of any complaints lodged by the complainant prior to his resignation. The respondent did not utilise the grievance procedure contained in the Staff Handbook. There was always a number of translators available in Head Office.

The respondent sought details of the issues from the complainant after receiving the letter regarding his intention to resign.

The complainant forwarded a large volume of documentation after his date of resignation and the respondent met with him to get an understanding of the issues.

There appeared to be a number of errors in relation to the complainant’s claims and the respondent was attempting to clarify matters.

The complainant’s claim for unfair dismissal was lodged more than six months after the date his employment terminated and he is therefore out of time for making such a claim.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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 consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

Whether the complainant has a valid complaint having regard to the time limits for initiating claims.

Whether the actions of the respondent were such as to justify the complainant’s resignation from his employment.

Legislation involved and requirements of legislation:

Section 8 (2) of the Unfair Dismissals Act 1977 states:

A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General –

(a)   Within a period of 6 months beginning on the date of the relevant dismissal, or

(b)   Within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause…

Section 1 of the Act defines “dismissal” and includes the following:

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..,

Decision:

The complainant, who is Polish, was employed as a Truck Driver by the respondent, his employment commencing in August 2002. His main driving duties were based in continental Europe. About 2009 new contracts were issued which changed pay rates and allowances. The title of the respondent changed twice in the period of the complainant’s employment with the complainant and similar employees transferring employment in each case. The employment relationship terminated when the complainant gave the respondent a letter of resignation on November 21, 2014 giving 4 weeks notice and citing “dishonest pay rates” as his reason for leaving. The complainant’s employment terminated on December 14, 2014. Some days later the complainant met with the respondent’s management and delivered a large volume of paperwork in relation to alleged underpayments over a number of years. Some months went by without further direct contact between the parties. During this period the complainant returned to Poland to reside there as he was eligible for a state pension. Eventually on October 2, 2015 there was another meeting between the complainant and the respondent’s HR Manager during which a small proportion of the paperwork was examined. There followed a further exchange of correspondence between the parties which was inconclusive. The complainant then referred the complaint to the WRC.

The preliminary issue to be dealt with is whether there was a reasonable cause as to why the complaint was not submitted within the six month period specified in the legislation. Evidence was given that the complainant returned to Poland about a month after his resignation and that communications were conducted through the Irish addresses that the respondent had on file. There was a meeting in September 2015 and correspondence from the respondent in November 2015. The complainant gave evidence that he was still hopeful that the matter would be resolved during this period. In these particular circumstances and having regard to the long delay that occurred in relation to the respondent making efforts to convene a meeting I am prepared to extend the period for lodging the notice of complaint as provided for in the legislation.

Moving on to the substantive issue I must determine whether, because of the respondent’s conduct, the complainant was entitled to terminate his contract and whether it was reasonable to do so. Matters to be considered are whether there was a significant breach going to the root of the contract and had the respondent conducted himself or his affairs so unreasonably that the complainant could not fairly be expected to tolerate it any longer.

There is no doubt that the complainant was unhappy with the operation of the new contracts that were introduced in 2009. The complainant stated in evidence that as he was based in continental Europe he only spent about 25 days per year in Ireland and that his contact with Head Office was even less than that. He stated that he had tried to raise his grievances when he was there but did not find the staff in the office very helpful. He was unaware that there were translators available in the office. He had spoken to the HR Manager about the matter in 2014. The complainant accepted that he had not invoked the grievance procedure nor had he put the grievance in writing. The respondent’s HR Manager said in evidence that the company employed many Polish drivers and that there were always translators in Head Office including two in his own office. He recalled speaking to the complainant prior to the events when the complainant mentioned the possibility of retirement. He then received the letter of notice and was surprised at the contents of same. He asked the complainant to provide details regarding his complaint but did not receive them until after the complainant left the employment. This documentation was voluminous and difficult to comprehend.

It would appear from this documentation that the complainant had been compiling information going back over several years. When the complainant handed in his resignation letter he gave four weeks notice. Yet it was not until after the termination of his employment that he produced anything in writing in relation to the issues that he had in dispute. Given the amount of money that the complainant states that was due to him over a period in excess of five years it should have been possible to ensure that management were formally aware of the seriousness of his grievance prior to taking the ultimate step of resigning. In examining this situation the Employment Appeals Tribunal stated:

“Except in very limited circumstances an employee must exhaust all avenues for dealing with his /her grievances before resigning.” (UD1775/2010).

Even allowing for the fact that the complainant’s work was such that he had limited contact with the Head Office I do not accept that he endeavoured to process his grievances to the extent that he had exhausted the procedures before deciding to resign.

I therefore find that the complainant’s claim under the Unfair Dismissal Act 1977 fails.

Dated:  29^th August 2016