ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002548

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

Date of Adjudication Hearing: 22/06/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 7 of the Terms of Employment (Information) Act, 1994 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:

Summary of Respondent’s Submission and Presentation:

Unfair Dismissals Act claim / CA-00003558-001

The Respondent submitted that there was no Dismissal – the Complainant resigned.

The Complainant has not demonstrated that there was any deficit in the manner in which he was dealt with by the Respondent such as to justify a claim of Constructive Dismissal.

The Complainant did not raise any formal complaint or grievance under Company procedures prior to his resignation.

The Complainant was the subject of a disciplinary hearing on the 10^th June 2015 – he was issued with a verbal warning under procedures. He appealed this warning but was unsuccessful in his appeal.

The Complainant resigned by letter dated the 25^th September 2015.

The Company met with the Complainant on the 30^th September and asked him to reconsider.

The Complainant had some discussions over issues of concern with the HR Director in early 2015.

Allegations of Bullying and Harassment are unfounded and lack specific details.

The Complainant was at all times fully aware of all Company Grievance Procedures.

The complaint made by the Complainant under the Whistleblower provisions was made post his resignation letter and included the remarks that he had already decided to resign.

A number of legal precedents were submitted in support of the above arguments.

Terms of Employment (Information Act) Act 1994 claim. / CA-00003558-003

Insufficient details were provided by the Complainant to allow a full defence of this 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.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Issues for Decision:

Was the Complainant Unfairly Dismissed? Is there a valid case of Constructive Dismissal on the grounds of the behaviours of the Respondent /Complainant prior to ending of the employment relationship?

Has the Complainant a valid case, under the Terms of Employment (Information) Act, 1994, on the grounds submitted?

Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977 – Sustainable case of Constructive Dismissal?

Terms of Employment (Information) Act, 1994

Decision:

As stated in the legal precedents quoted especially the Coffey v Connect Family Resource Centre Ltd – UD 1126/2014

“The bar for constructive dismissal is very high and unfortunately the claimant has not demonstrated that there was a deficit in the manner in which the employer dealt with her complaints such as to render her constructively dismissed.”

The requirements for a Constructive Dismissal case are effectively

1. Unreasonable Behaviour by the Respondent employer i.e. refusal to follow due process with regard to the employee

and

1. Reasonable Behaviours by the Complainant –generally taken to mean the full use of all complaint/grievance procedures by the Complainant prior to any resignation.

Taking these standards into account I came to the following conclusions.

Of great significance, the Complainant wrote a resignation letter to the Respondent on the 25^th September 2015.

The Respondent’s Manager Ms. XX met with the Complainant on the 30^th September 2015 and from oral evidence given and from a minute of the meeting taken by herself she asked the Complainant to reconsider his decision. He declined to do so. The evidence given by the Manager concerned was direct and clear cut and I found it persuasive. The Complainant did not challenge the veracity of this evidence.

Later that day, the 30^th September, he , the Complainant, sent a detailed Whistle Blower e-mail to the Head of Security in the Netherlands (Company Corporate Head Quarters) in which he stated

“At this point in time I am doing this not from a personal perspective as I have already decided to resign but for any future ISO who comes after me in XXX and that they can do the job properly and without hindrance in the in interests Security.”

Emphasis added by myself.

This letter/e mail was written after the meeting with the Manager on the 30^th September, where he was asked to reconsider and clearly indicates that the resignation was a considered decision. In oral evidence the Complainant indicated that it was written in the late afternoon/evening of the same day.

Extensive Oral evidence was given at the Hearing and it was clear that the relationship between the parties had been strained for most of the Summer of 2015. The Complainant had received a Verbal Warning on the 29^th June 2015 and he had unsuccessfully appealed this. He was familiar, both initially as a Manager with reporting staff and from personal experience, with Company Grievance and Complaint procedures.

Furthermore, earlier in the year he had raised issues of complaint with the Head of HR and it appeared that matters had been resolved or “put behind” the parties.

Allegations of Bullying and Harassment were made but were largely unspecific and seemed to resolve around his relationship with the Director of Information Security. Oral evidence, which I found convincing, was given by the Director to rebut these claims.

An issue arose over the placing of job adverts by the Respondent to allegedly fill the Complainant’s position while he was still in employment. While there was a degree of ambiguity here it appeared that the Respondent may have been seeking to establish the possibility of a temporary replacement while the Complainant’s sick leave status / return date was still unclear.

The Complainant had been on Sick Leave for a considerable portion of July and August 2015, returning to work on the 22^nd of August 2015. From Oral evidence he stated that the work atmosphere had become negative towards him on his return. He stated that he was effectively put doing junior level work. The Respondents representatives denied this and explained that the Complainant had specific expertise that was required for a project he was assigned to on his return. It was not work of a lesser status.

In regard to the general behaviour of the Respondent towards the Complainant a considerable pattern of interaction, beginning with meeting with the HR Director in January 2015, had taken place in regard to the Complainant’s concerns. In oral evidence it was clear that the Complainant was a senior person in the organisation and was not intimidated, from a status point of view, in any discussions he had with the HR Director.

In conclusion, having taken and considered all the evidence both oral and written, I have come to the decision that the Complainant’s resignation was a considered act, taken after reflection and dismiss the claim for Constructive Dismissal.

This complaint referred largely to the Respondent’s Sick Leave policy and from Oral evidence given at the hearing it appeared that the matters at issue had been disposed of.

In any event specific details were not available and the Claim was set aside.

Dated:   2^nd August 2016