ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002214

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-00003016-001	03/03/2016

Date of Adjudication Hearing: 08/09/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

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.

Complainant’s Submission and Presentation:

The complainant submits that she was constructively dismissed from her employment. A verbal submission was given at the hearing supplemented by documentation. The background and substance of the case can be summarised as follows:

It is argued that the actions of the employer were so unreasonable that the employee was left with no option but to resign. She contends that during the course of her work on 17^th October 2015, she was informed by her employer, the respondent, that she was dismissed with immediate effect. On 20^th October 2015, she was summoned to a meeting, whereby she was subjected to intimidation and coercion on the basis that if she did not resign she was threatened that she would not receive a favourable reference or P45. She was subsequently informed by letter dated 22^nd October 2015 that she would be subjected to a disciplinary hearing for allegedly sabotaging or destroying suitable mushrooms for sale. On the 22nd October 2015, the respondent informed the complainant by way of letter that she was invited to attend a disciplinary hearing for allegedly "sabotaging/destroying suitable mushrooms for sale" and she was invited to attend a disciplinary hearing on the 30th October 2015. By letter dated 29th October 2015, the complainant’s solicitor advised the respondent that they had serious concerns in respect of the complainant attending same owing to significant breaches of fair procedures on their part. Notwithstanding, the employer proceeded with the hearing. Subsequently the respondent issued her with a Final Written Warning and she was given a right to appeal the decision within five days. On the 4th November 2015, the complainant's daughter sent a text message to a Manager Mr. V and asked him when the complainant could return to work. On the same day, she also called his number twice but on both occasions the number rang out. Neither her text message nor her calls were returned. On the 5th November and the 9th November, the complainant’s solicitor wrote to the respondent requesting that they confirm when she could return to work. By way of letter dated 10th November 2015, the respondent informed the solicitor that she did not make contact with them to inform them of her absence from work. On the 13th November, the complainant reported for duty wherein she was advised that she was suspended on full pay as a result of her “unauthorised absence and failure to follow reasonable management instruction”. By Letter dated 13 November 2016, the respondent invited the complainant to attend a second disciplinary meeting on the 17th November 2015. She attended same and she requested that she be reinstated or in the alternative she would be provided with her p45. Subsequent to this meeting, she was offered a compensatory sum to settle her case by an interpreter. Owing to the conduct of her employer, it became impossible for the complainant to continue her employment. Accordingly, she provided the employer with her letter of resignation dated 20th November 2015.

Respondent’s Submission and Presentation:

The respondent refutes the allegation that the complainant was unfairly dismissed. She tendered her own resignation. It is submitted that the burden of proof resting on the complainant is high. The statutory definition of constructive dismissal is :

“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”.

In Employer v Employee [UD1146/2011] the EAT found that a high level of proof is needed to justify the claimant’s involuntary resignation ...

“there are two tests in the statutory definition both of which may be invoked by an employee:

The contract test : i.e. if an employee argues the entitlement to terminate the contract because of a fundamental breach of contract on the part of the employer. The breach of contract being alleged must be either a sufficient breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.
Reasonable test : i.e. that the conduct of the employer is such that it was reasonable for him to resign. “

The complainant was observed wilfully destroying viable mushrooms and was placed on paid suspension and invited to an informal investigation meeting. She was invited to attend a disciplinary meeting which was scheduled and re-scheduled but the complainant still failed to attend. The third time the meeting was re-scheduled for was 30^th October 2015 and the hearing went ahead in her absence. The respondent issued a final written warning to the complainant and she was required to attend work the following Monday. It is argued that this was obvious from the letter written to her on 30^th October 2015. The complainant’s solicitor wrote on 3^rd November 2015 looking for documentation to determine if they should appeal. The respondent wrote back on 4^th November 2015 and confirmed that the complainant should report for work as per usual. The complainant did not attend work until 13^th November 2015 despite being informed on a number of occasions both directly and through her representative that she should attend for work. The complainant was placed on paid suspension and a disciplinary hearing took place on 17^th November 2015 with a Latvian translator present. The complainant was issued with a verbal warning for her absence. She resigned her employment on 20^th November 2015. She was asked to reconsider her resignation and offered the grievance procedure to address any issues she had. However the complainant lodged a claim for unfair dismissal. Further case law was submitted to support the argument that the grievance procedure must be utilised to attempt to remedy an employee’s complaints before they can accuse the employer of unreasonable behaviour.

Decision:

The situation in which the complainant found herself arose from an incident on 17^th October 2015 when she was alleged to have destroyed viable product. From the beginning, there was miscommunication to varying degrees, some of which can be attributed to the complainant’s lack of English language. I note the internal ‘informal’ investigation was held on 19^th October with no notice to the complainant and no provision of an independent interpreter. The tone of that meeting as conveyed in the record, shows the complainant under a considerable amount of pressure. She was then suspended with pay and invited to a disciplinary meeting and was advised of her right to representation. I note that the respondent re-scheduled the disciplinary meeting three times to accommodate the complainant however, she did not attend. In her absence she was issued with a final written warning and right to appeal. The next point of conflict arose when the complainant did not report for work and she was subjected to another disciplinary situation and issued with a verbal warning. She then resigned her employment. She was offered the opportunity to reconsider and utilise the grievance procedure to have her grievances heard. She did not avail of that offer. I note the conflict surrounding her return to work and I find that the respondent employer could have made some effort to respond to the complainant’s daughter’s text given the language difficulties.

However, the behaviour of the respondent employer was not so unreasonable as to merit the employee resigning in the meaning of the definition of constructive dismissal. I do not find that the heavy burden of proof has been discharged by the complainant in this case. I do not uphold her complaint of unfair dismissal.

Dated: 6 December 2016