ADJ-00000392

ADJUDICATION OFFICER DECISION

A Worker –V- An Employer

Adjudication Decision Reference: ADJ-00000392

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

Date of Adjudication Hearing: 26/02/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

2. Procedure:

1. In accordance with Section 41(4) of the Workplace Relations Act, 2015; Section 8(1B) of the Unfair Dismissals Act, 1977; and Section 27 of the Organisation of Working Time Act, 1997, 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(s)/dispute(s).

     

4. Complainant’s Submission and Presentation:

1. This complaint refers to:

   1. the alleged treatment of the Claimant, a Motor Assessor, by the Respondent regarding the handling of concerns raised by the Claimant in relation to his working conditions, and where it is alleged that such conditions caused untold stress and anxiety for the Claimant which gave cause for him to visit his GP complaining of work related stress; and where he felt that he had absolutely no alternative but to resign his position; and

   2. the Claimant also contends that the Respondent required him to work excessive overtime hours and when he tried to raise these issues, contrary to Section 26 of the Organisation of Working Time Act 1997, he was penalised by his employer.

       

2. Summary of Complaint Regarding Constructive Dismissal

   1. The Claimant commenced working with his employer on 8^th May 2006. His job required him to travel around the country and assess motor claims. It was the Claimant’s case that when he began employment he was first appointed to the Respondent’s Tralee office, and one year later he moved to their Kildare office. He stated that over the years there would have been a casual arrangement and flexibility in relation to completing his work. Generally his responsibilities required him to visit sites on a number of days a week and then complete reports in relation to the work he assessed.

       

   2. The Claimant contended that the situation changed approximately 2½ years ago where things became difficult, and more recently upon the appointment of his manager to the position of Managing Director of the company. Specifically the Claimant had concerns regarding the amount of work he was required to complete in order to receive his bonus payments, and believed there was not a fair approach to the work allocation and payment of bonuses. In addition the Claimant referred to the allocation of company cars where he contended that he was also treated unfairly.

       

   3. The Claimant contended that the bonus scheme which was introduced never worked and he submitted his concerns to the Respondent on 1^st April 2015 where he asked to be taken off the bonus scheme. His request was passed to the Managing Director and this was followed up in a subsequent casual one-to-one meeting 14^th April 2015. The Claimant argued that he had heated discussions with the Managing Director at this meeting and from that point onwards matters deteriorated.

       

   4. The Claimant outlined in his evidence that following the meeting of 14^th April 2015 he would have received an email inviting him to attend a subsequent meeting (on 13^th May 2015) with just one day’s notice. However due to prior arrangements he was not in a position to attend that meeting.

       

   5. There was a subsequent exchange of e-mails between the Claimant and the Managing Director which led to a meeting being organised for 28^th May 2015 between the Claimant, the Managing Director, and an external HR Consultant. The Claimant was advised that this meeting was to be a formal disciplinary meeting. The Claimant asked for this meeting to be postponed by two weeks as again he had received too short a notice for it. The meeting was rearranged for 12^th June 2015.

       

   6. The Claimant argued that being invited into a disciplinary process, which indicated to him that he may be subject to disciplinary action, was contrary to the flexible culture which had existed. He therefore became concerned regarding the Respondent’s handling of matters from this point. Furthermore he argued that the Respondent’s inflexibility regarding an opportunity to reschedule the meeting of 13^th May 2015, and subsequent disciplinary procedures, were unreasonable as another colleague was allowed not attend a business meeting without notice that was planned for 24^th June 2015 in order to attend a golf outing. This the Complainant contended further demonstrated the unfair treatment he received.

       

   7. The Claimant in his evidence explained that following the disciplinary meeting he was not subject to any disciplinary action. However, as he was upset about how the matter was handled, he invoked a grievance where this grievance was progressed by the external HR consultant. He contended that the HR consultant insisted on holding an appeal of the disciplinary hearing which was not what he was looking for. Rather he was concerned that the initial matter had been handled unfairly because he had challenged the Managing Director, and what he was seeking in the grievance was for that issue to be considered and addressed. As a consequence of the Respondent failing to address that matter the Claimant felt that the Respondent was behaving so unreasonably towards him that he had no option but to resign. In that regard he contended the handling of his concerns, particularly be insisting that he wanted to appeal the disciplinary process, amounted to constructive dismissal by the Respondent.

       

   8. The Claimant contended that he received no further notice regarding the handling or outcome of his grievance.

       

3. Summary of Complaint of Penalisation under the Section 26 of the Organisation of Working Time Act 1997

   1. The Claimant also contended that he was penalised for raising concerns about his working hours when he complained to his employer about excessive overtime, and at the hearing he also complained that he did not receive lunch breaks. The Claimant also contended that he had been treated unfairly regarding the use of company cars and his telephone where he was threatened that these could be taken from him.   The Claimant argued that in reply to his concerns the Respondent told him he was to accept the conditions that pertained although they were outside his contract of employment. He advised that he was told that the Respondent would, inter alia, revoke the use of his company car if he did not comply with the requirements regarding his working time. He therefore was making a complaint to the WRC that his employer had penalised him for raising his concerns regarding his working time which is contrary to Section 26 (1) of the Organisation of Working Time Act, 1997.

       

   2. In his evidence the Claimant advised that matters relating to his working hours were raised by him and discussed with the Respondent in March 2014. He argued that he found the Respondent’s attitude at that time to be unjust and patronising.

       

       

      Respondent’s Submission and Presentation:

4. The Respondent raised its concern that it had not received submissions from the Claimant prior to the hearing which is contrary to the WRC guidelines.

    

5. Summary of Response Regarding Constructive Dismissal

   1. The Respondent contended that on 1^st April 2015 the Complainant raised his concerns regarding the bonus scheme, that he wanted to be taken off the bonus scheme ,and as this was part of his contract of employment it warranted discussions with the Managing Director. Discussions were held between the Complainant and the Managing Director on 14^th April 2015. The Respondent advised that the purpose of this meeting was to know why the Claimant had asked to be taken off the bonus scheme, and to ascertain if the Claimant was making the right decision.

       

   2. In attempting to set up a follow on meeting the Respondent said it experienced difficulties with the Claimant. Specifically as the Claimant had cancelled the meeting planned for 13^th May 2015 with only one day’s notice, and the Respondent was concerned that the Claimant refused to explain why he could not attend. Consequently the Respondent decided to escalate matters as they deemed the Claimant’s failure to comply with a reasonable request from his manager to attend a meeting was a serious issue. The Respondent therefore invited the Claimant into a disciplinary hearing as they viewed his attitude towards the Managing Director to be of concern. When they held the disciplinary meeting they considered the Claimant’s response and decided no further action was required.

       

   3. The Respondent in its evidence contended that following the issuing of its findings regarding the disciplinary meeting the Claimant invoked a grievance procedure on 20^th June 2015. The grievance procedure contained seven items which included matters relating to company cars from 2011 and 2013; an issue over a phone call and the manner the Managing Director had handled matters; an issue relating to salary; the manner the Claimant was asked to attend a meeting in Tralee in 2014; a training matter from September 2014; and the disciplinary procedures of June 2015.  

       

   4. The Respondent contended that as they understood the grievance was against the Managing Director they appointed a HR Consultant to handle the grievance, and the consultant wrote to the Claimant on 25^th June 2015 to clarify the nature of the Claimant’s grievance, particularly in relation to the disciplinary procedures. In this correspondence the HR consultant understood that the Claimant was appealing the disciplinary procedures and sought to meet with the Claimant to progress matters.

       

   5. The Respondent contended that the HR consultant wrote again to the Claimant on 6^th July 2015 seeking clarification in relation to his grievance, and where they informed the Claimant that if he did not clarify matters by 8^th July they would take this as his acceptance of the outcome of the formal disciplinary process and they would progress with the grievance procedures. The Claimant was also invited to contact the HR consultant if he had any further questions on the matter.

       

   6. The Respondent therefore contended that it was seeking to clarify the nature of the Claimant’s grievance on 6^th July 2014 and as it was attempting to get this clarification the Claimant resigned. The Respondent also advised that the HR consultant offered to meet with the Claimant in early July but the Claimant declined this offer. The Respondent further contended that the Claimant advised the HR consultant that he preferred to deal with the grievance matter through email, and on the morning of 8^th July 2015 the HR consultant advised the Complainant by email that they would proceed with the grievance procedure and suggested a meeting for 17^th July 2015 to advise the Complainant of the outcome of the grievance. The Respondent stated that on the evening of 8^th July 2015 the Claimant submitted his resignation to the Managing Director where the Claimant advised he had no confidence in management and where he advised that he found the HR consultant was very partial towards the company. The following day the Managing Director responded to the Claimant urging him to reconsider his decision and to allow internal procedures to run their course before the Claimant made “a decision of such magnitude”.

       

   7. The Respondent therefore contended that the Complainant resigned and that it could not be deemed as constructive dismissal.

       

6. Summary of Response to the Complaint of Penalisation under the Organisation of Working Time Act 1997

   1. In explaining the bonus scheme the Respondent advised that the scheme was designed to ensure that a balance existed in relation to the mileage to be covered and the amount of inspections completed. Therefore each assessor had a different application of the bonus.

       

   2. The Respondent argued that an employee was not forced to work more hours than their contract of employment, and that no penalty applies if the Claimant did not complete a set number of inspections and reports. If workloads were found to be too heavy another assessor could complete the work. This did not affect the salary of the Claimant, but he would not earn his full potential bonus under such circumstances.

       

   3. In its evidence the Respondent also demonstrated that the matters in relation to company cars, salary issues, a meeting in Tralee, and the selection of engineers for training would have occurred between 2011 and September 2014 and that these matters would have be dealt with at the time.

       

   4. The Respondent contended that it did not penalise the Complainant as alleged and therefore contended it was not in breach of Section 26 of the Organisation of Working Time Act 1997.

       

      Decision:

7. 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.

    

8. The maters for decision are:

    

   1. Firstly the Respondent contended that the Claimant did not adhere to WRC Guideline Procedures regarding the making of submissions. I must therefore decide on this issue as it was raised as a matter of procedure.

       

   2. Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim contrary to Section 6 of the Act, and consisting of a grant of redress in accordance with section 7 of the 1977 Act.

       

   3. Section 27(3) of the organisation of Working Time Act 1997 requires that I make a decision in relation to whether there has been a contravention of the provisions as set out in Section 26 of the Organisation of Working Time Act, 1997.

       

9. Findings and Conclusions

   1. Procedural Matters

1. Referring to the WRC guideline document “Procedures in the Investigation and Adjudication of Employment and Equality Complaints”, the Respondent contended in its written submission that the Claimant failed to make a detailed submission.

    

2. Section 5 of the WRC Procedures states a clear statement setting out the details of the complaint will be required from the complainant in all employment equality cases and in all complaints of constructive unfair dismissal within the meaning of part (b) of the definition in section 1 of the Unfair Dismissal Act when submitting the form. In all other unfair dismissal cases a statement will be required from the respondent within 21 days of the date of the request by the WRC. The Adjudication is satisfied that the Claimant did set out the details of his complaint in the complaint form submitted to the WRC.

    

3. Notwithstanding, I am satisfied that the parties were provided with a fair procedure at the hearing and where all matters submitted have been exchanged and considered before making my findings.

    

1. Finding under Section 8(1B) of the Unfair Dismissals Act, 1977

1. Based on the evidence provided the Claimant advised the Respondent on 1^st April 2015 that he wished to be taken off the bonus scheme and the Respondent set out to discuss this with the Claimant. A meeting took place on 14^th April 2015 and the Claimant ultimately refused to meet the Managing Director again at a follow up meeting on 13^th May 2015. As a consequence the Respondent set up a disciplinary procedure to investigate the Claimants refusal to attend the meeting as it deemed his refusal to be of concern. A review of the e-mails between the parties at this time indicates that the relationship between the Claimant and the Managing Director were strained.

    

2. A disciplinary interview was subsequently held in June 2015 but the Respondent did not uphold any wrongdoing by the Complainant. The Complainant subsequently raised a grievance about this matter, and where the grievance also contained six other issues, to which he subsequently added another. The Respondent appointed an external HR consultant to conduct a review of the grievance and in seeking clarification about the grievance the Claimant took exception to what he understood as the approach being taken by the HR consultant. In attempting to address matters the HR Consultant offered to meet with the Claimant but he refused, and advised he would prefer for matters to be dealt with through e-mail. In the course of this correspondence, and before the Respondent had commenced the grievance hearing, the Claimant resigned claiming constructive dismissal.

    

3. The bar for constructive dismissal is very high, and based on the evidence provided the Claimant has not demonstrated that there was a deficit in the manner in which the Respondent dealt with his complaints such as to render him constructively dismissed. In addition it is unfortunate that the claimant did not pursue the grievances through the relevant procedure. Therefore the Adjudication cannot find that the Claimant was constructively dismissed in light of:

1. the fact that the Respondent has a legitimate right to raise a disciplinary matter to consider a refusal of an employee to attend a meeting with the Managing Director,

2. the fact that the Respondent did conduct the disciplinary procedures fairly,

3. there being no adverse finding against the Claimant, and

4. that fact that in the course of the Respondent attempting to address the Claimant’s grievance, the Claimant left before that process was concluded.

Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.

1. Finding under Section 26 of the Organisation of Working Time Act 1997

1. The Claimant alleged that he was penalised for refusing to co-operate with a breach of the Organisation of Working Time Act.

    

2. With reference to this claim, the Claimant referred to matters dating back from 2011 to 2014 in relation to where he inferred actions regarding being penalised may have occurred. Notwithstanding, the evidence presented at the hearing indicated that these matters were dealt with at the time by the Respondent. Furthermore the evidence presented does not support a claim that the Respondent has acted unlawfully under the Organisation of Working Time Act 1997.

    

3. Therefore the claim under the Organisation of Working Time Act fails.

    

Dated:   18^th May 2016