ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000914

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

Date of Adjudication Hearing: 07/09/2016

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and 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(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).

Attendance at Hearing:

Complainant’s Submission and Presentation:

Background

The Complainant worked for a fast food restaurant company from 17 June 2010 until 10 July 2015. He was a shift manager/team leader in the restaurant. His complaint was received by the WRC on 8^th December 2015. At the hearing the Complainant attended in person and four representatives attended for the Respondent.

CA-00001341-001

Complaint under the Unfair Dismissals Act, 1977.

At the hearing the Complainant gave a detailed verbal presentation of his case.

The Complainant submitted that his employer effectively breached the terms of his contract of employment by not accommodating his return to work after a surgery for an injury, that they made his life intolerable and his job untenable. The Complainant's chosen remedy was re-instatement or compensation.

The Complainant stated that he had had micro fracture knee surgery on 20 November 2014 and he was on crutches for more than six months. He received a fitness certificate from his doctor on 03 July 2015 in which she stated that he was fit to return to work from 09 July 2015 to undertake light duties/sedentary work. He sent his final medical certificate to the company on 03 July 2015 (the same day he received it from his doctor) and informed the company that he would be available to work from 09 July 2015. He spoke to the Assistant Manager on the telephone telling him that he would be back to work on 09 July 2015, and asked to be put on the roster and asking to know what time he should start. He also talked to two other managers about his return to work. He asked one of them to provide him with alternative work/light duty or sitting work in the office until his complete recovery. The manager said, “We will discuss about it on 09 July 2015 when you come to work”. On 8th July 2015 an Assistant Manager phoned him and told him to come a sandwich bar near his work place on 09 July 2015 to discuss the situation. The Complainant asked him about his roster for that week. He was told by the manager that, “we haven’t put you on the roster”.

At the meeting of 9 July the Complainant was told the company had received his letter and after consideration and reviewing his sick note, they could not provide him with a sitting job. The Complainant argued that the company should give him alternative work but the manager said that they didn’t have anything for him at that time and suggested to him that they would have regular meetings with him to see how he was keeping and when he would be fully capable to resume his job as a team leader. The Complainant was very disappointed at the outcome of the meeting and he asked to be given a note to confirm the outcome. The manager said that he would talk to HR about it.

Not satisfied with the outcome of the meeting the Complainant brought his case to a higher level manager but he was told there was nothing they could offer him at the time. The Complainant stated that this manager asked the Complainant to let them know whenever he was entirely fit to resume the work which he was employed for. The manager said they would have regular meetings with him to see how he was doing. He was told that if the situation remained like this for long time then company would have to terminate his contract. The manager advised him to go back on illness benefit. The Complainant told him that his doctor had issued him a fitness certificate and that he had signed off from illness benefit. It was imperative that he return to work or else he would have serious financial problems. The manager said that they couldn't help him. Later when the Complainant asked for written confirmation of the situation he was told, “HR said that they are not allowed to give any such statement in writing”.

The Complainant submitted that his request that he be taken back to work had been refused after a week long conversation. This forced the Complainant to resign from the job in order that he be able to claim jobseeker’s benefit. He sent his resignation by email to his manager on the evening on 10 July 2015.

On 11 July 2015 the Complainant spoke with an assistant manager regarding his P45. The assistant manager advised the Complainant to return his access permit so he could process his end of employment on the system and to raise a request for his P45. The assistant manager said he could not process the matter that day as it was the weekend. The Complainant submitted his access permit and a pass for the staff car park on Monday 13 July 2015.

In the weeks after his resignation some contact was made between the Respondent and the Complainant to ascertain his status. The Complainant made it clear during this period that he had resigned from the company. The company suggested that his resignation may have been a "hasty resignation", the Complainant's response to the company was that his resignation was not hasty. The Complainant also submitted that, "nowhere in the process did I retract my resignation."

The Complainant stated that twelve days after his resignation he was contacted, by email, by the Respondent's HR Department in the UK asking him if he wished to reconsider his resignation. The Complainant replied that he had been forced to resign, explaining the reasons why. The HR Dept. told the Complainant that a post in administration had become available if he wished to apply. The Complainant duly applied for the post and was called to interview on 26^th August. The Complainant submitted that the interview was a sham and a hoax; that he never had a chance of getting the job as someone was already earmarked for it.

The Complainant also submitted that he was asked to submit backdated Sickness Certificates and handback his P45.

In cross examination the Complainant agreed that he had raised a grievance in the past and was aware of the procedure. In response to a question the Complainant stated that the reason he raised the matter of a redundancy payment was because he thought one might be available.

Respondent’s Submission and Presentation:

The Respondent provided a detailed written submission. In the submission the Respondent outlined the background to the situation. The Complainant underwent surgery on his knee in November 2014 and was out on sick leave from that date until his resignation in July 2015.

On 3^rd July 2015 the Complainant's doctor certified him fit to work on light duties. Having assessed the Complainant's role and the ability to provide light duties the Complainant's manager met with him on two occasions to discuss the matter. At these meetings it was made clear to the Complainant that there were no light duties available for his role as all team members, including management, are required to stand, lift boxes, take in deliveries, work on tills and cook food. The Complainant could not carry out these duties as he could only stand for five minutes at a time. There were no vacancies in office type jobs at the time. The Complainant was also informed that the company had no problem with him remaining out sick and his job would be held open for him when he was fit to return.

On the 10^th July the Complainant resigned without notice, citing a lack of a position available for him to do light duties as the reason for his resignation. The Respondent pointed out that the Complainant had not raised any grievance regarding light duties or lack of other roles prior to his resignation.

On 24^th July the HR team contacted the Complainant by email asking him to attend a meeting to discuss his concerns, and informing him that his resignation would be placed on hold until the meeting had been held. The Complainant responded stating that there were only two alternatives available for the company (an office job or a redundancy payment).

On 10^th August the company contacted the Complainant to let him know that a temporary vacancy in an administration role was available should he wish to apply for it.

On 12^th August the Complainant met a Company representative to discuss his resignation and the issues he had raised previously. At this meeting, it was submitted by the Respondent, the Complainant asked if the company could give him an office based role and if not were they going to pay him a redundancy payment. At this meeting the Complainant also denied that his resignation had been a "hasty" resignation.

On 19^th August the company wrote to the Complainant asking him to reconsider his resignation. This letter also mentioned that fact there was a temporary vacancy in an administrative post and suggesting the Complainant might like to apply for the post. He did and attended for interview but was unsuccessful in getting the job.

The Complainant wrote to HR on 3^rd September re-affirming that his resignation was not a hasty one.

As the Complainant did not wish to raise any grievance or reconsider his resignation, and confirmed his resignation by email dated 17^th September 2015, the company processed his resignation at that point.

In closing the Respondent put forward that in a constructive dismissal claim such as this there exists a burden on the employee to demonstrate that:

• They were entitled to terminate their contract of employment by virtue of a demonstrated breach of the contract on the part of the employer or

• That the employer had acted so unreasonably as to make the continuation of the employment intolerable and that it was reasonable for the employee to resign.

The Respondent submitted that in relation to the contractual test the company had at all times operated within the terms of the contract of employment between the parties and that no contractual violation occurred; no change had been made to the Complainant's contract and it had been expressly outlined to the Complainant that he was entitled to come back to his original role when he was fit to do so.

The Respondent submitted that in relation to the test of reasonableness the company had acted reasonably and fairly at all times in accordance with its policies, best practice and appropriate conduct. The company had been active in its dealings with the Complainant as to his welfare and fitness, that his role was kept open for him.

The Respondent also drew notice to the fact that the Complainant had not raised a grievance at any time regarding his employment status.

Findings and reasoning

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“the termination by the employee of his/hers contract of employment with the employer whether prior notice of the termination was or was not given to the employer in the 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 cases such as this the burden lies on the Complainant to prove that it was reasonable for him to terminate his own employment due to a significant breach by the employer of a fundamental term of his employment contract or because of the nature and extent of the employer’s conduct and the circumstances in which the employee was expected to work.

Based on his evidence I find that the Complainant has not demonstrated that there was any breach of his employment contract nor that his work circumstances and situation merited a decision not to return to work following his sick leave.

The Complainant was not forced to resign, it was his decision and was not based on any unreasonable action by the Respondent. The day before he resigned the company assured him that his post was open to him when he was fit to return to work. Following his resignation the company went to great lengths to let him know that they did not wish him to resign and that they would wished him to return to work. Over the summer months the Complainant was adamant he had resigned and gave the company only two options either find him a desk job or give him a redundancy payment. At all times the company acted reasonably, in fact it would seem that they went beyond what would be the norm in these circumstances in their attempts to get the Complainant to reconsider his resignation.

Further, prior to an involuntary resignation an employee must exhaust all reasonable attempts to resolve their complainants and grievances with their employer. As an initial step an employee must inform their employer of the issues causing those complainants and grievances. Making the employer aware of them allows the Respondent to address those concerns. There is no evidence that this initial step was undertaken by the Complainant prior to his resignation. The Complainant was also a member of a Union yet he never sought their intervention in this matter.

The Complainant's contention that he was forced to resign does not stand up to scrutiny.

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 and 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.

Having carefully considered all the evidence I find that the Complainant was not constructively dismissed. Accordingly, the claim under the Unfair Dismissals Acts, fails.

CA-00001341-002

Complaint under the Organisation of Working Time Act, 1997.

Findings and reasoning

 Section 41(6) of the Workplace Relations Act 2015 states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complaint under the Organisation of Working Time Act refers to alleged breaches that took place before his sick absence commenced in 2014 and are therefore outside the six month limit allowed.

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.

This claim is out of time and fails.

Dated:   07/11/2016