ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001914

Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002633-001	16/02/2016

At: Workplace Relations Commission, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 27/04/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and 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.

Background.

The Complainant was employed with the Respondent from 15^th May 2006 until he terminated the employment on 30^th October 2015. The Complainant was paid €1266.00 gross per fortnight and he worked 39 hours a week. He was provided with a Written Statement of his Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Company and the Employee Handbook.

The Complainant lodged a complaint with the Workplace Relations Commission on 16^th February 2016 alleging unfair dismissal by reason of constructive dismissal.

Complainant’s Submission and Presentation:

At the end of 2011 my friend from work (named) had an affair with my girlfriend. (Because of that I had many problems: break up, separation with my daughter, loss of home (joint mortgage), series of court cases, health problems and loss of work and money). Then I asked HR manager for a transfer to opposite shift because of stress. He agreed. In Feb 2014 I was send back to the same shift as named individual without asking me about opinion. I did ask Supervisor for transfer back but he refused. Then I asked my Manager ( named) twice but he refuse also. I did explain to him how hard and stressful is for me to work with this named individual. I tried to call Compliance Office but the telephone number from the leaflet given to all employees did not work at all! So I did send an email in July 2014. After a month without any response I went to HR Director explaining my situation and asked for transfer. (We tried to call the Compliance office together without any result). After that I had meeting with my Manager but he still did not want to transfer me to the opposite shift. After 6 months I got response for my email and meeting with Compliance Manager on 16.01.2015. After that my Manager offered me transfer to the different department (production). Finally after one year I was separated from the named individual. In the mean time I made two grievances against this named individual because of his insulting and attacking me behaviour (02 Jun 2015 and 29 Sep 2015). Both grievances were found to be unfounded. Manager told me also that want me back to the same shift as this named individual. Since 04 Aug 2015 I was off from work suffering depressive reaction on stress. Now I’m unemployed on antI depressant tablets using counselling service and waiting for sessions with psychologist. In years 2014 and 2015 I was off from work many times during the stress related illness. I had also 6 psychology sessions between 25 Jun and 10 Sep 2014.

Summary of Respondent’s Position.

For Reasons related solely to his personal life he requested changes to his contractual shift patterns since 2011. The Respondent facilitated a number of such requests and on other occasions, where for operational reasons this was not possible, the Respondent provided reasonable alternative shift options and opportunities to work in alternative roles and departments which for the most part the Complainant rejected.

He was facilitated with access to the Employee Assistance Programme in relation to dealing with his personal issues and as part of this assistance he attended six psychology sessions between 25^th June and 10^th September 2014. He was offered the opportunity to attend additional sessions but he declined.

The Respondent investigated a number of complaints submitted by the Complainant during 2015. The outcome was communicated to the Complainant and he was afforded a right of appeal but did not do so. – copies provided.

The Complainant was absent from work with lower back paid from 3^rd March to 28^th April 2015 and with stress from 4^th August to 30^th October 2015. He was certified fit for work by the Company Doctor on 5^th October 2015. However he did not return to work and submitted his resignation effective from 30^th October 2015.

The Complainant refused a number of alternative shifts. He cited the following as reasons as to why these did not suit him – He played in a Band at the week-end – He would only move if his girlfriend who worked with the Respondent could also be moved to the same shift pattern – his car pooling arrangements were not suitable.

Findings.

The Complainant was requested to provide evidence that he was in receipt of Job Seekers Benefit from the Department of Social Protection from the date of the termination of the employment to the date of the Hearing. This was not provided.

The Complainant had personal issues with another named employee. Both Parties confirmed to the Hearing that the Complainant had sought changes to his shift pattern on a number of occasions between 2011 and 2015. The Respondent facilitated these requests where possible.

Both Parties confirmed that Complainant was offered a number of different transfers or shift patterns, which he refused for a number of reasons as outlined by the Respondent and confirmed by the Complainant at the Hearing.

I note that the Complainant was facilitated with a reference to the Employee Assistance Programme, including six sessions with a Psychologist, to enable him to deal with his personal problems.

I further note that the Complainant was declared fit to resume work on 5^th October 2015 by the Company Doctor but did not do so and subsequently resigned.

Section 1 of the Act defines what is commonly described as “constructive” dismissal as (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 to the Employer.

There are essentially two tests that an employee can argue in a complaint of constructive dismissal.

There must be a significant breach of the contract of employment by the employer, which shows that the employer no longer intends to abide by one or more elements of the contract of employment and that in such circumstances the employee was justified in tendering his resignation. The Complainant has not established there was any breach by the employer of the contract of employment.
The Complainant must have acted reasonably in tendering his resignation. There was no evidence presented to me at the Hearing to support the Complainant’s position that the conduct of the Respondent was such that it was reasonable for him to tender his resignation.

Decision:

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 consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I declare the complaint of unfair dismissal is not well founded. The Complainant has not shown that he acted in a reasonable manner in tendering his resignation on 30^th October 2015

Date: 8^th August 2016