ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002211

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

 Date of Adjudication Hearing: 07/09/2016

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, 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:  

1:        Complainant’s Submission and Presentation:

 2:        Respondent’s Submission and Presentation: 

1. Introduction 

This is the submission of the Respondent in relation to the Complainant's Constructive Unfair Dismissal complaint.

2. Preliminary Points

There are two preliminary points that should be addressed in this matter before a substantive hearing takes place:

2.1 Pending Civil Matter

The Complainant has referred, in his complaint form; to a pending civil matter "which has bearing on this complaint and throws into question the validity of the 'Terms of my Career Break'." It is necessary to establish whether or not there is any duplication of claims.

2.2 No Case to Answer

It is respectfully submitted that this is a Complaint which can only be interpreted as arising from resignation by of the Complainant. The Respondent submits that it has no case to answer.

In the event that it is determined that there is a case for the Respondent to answer, which is denied, then in any event the burden of proof is on the Complainant.

 The Complainant has not provided detailed submissions in advance of the hearing. He has not met the burden of proof required. He cannot meet said burden on the facts as evident in this Complaint. It is respectfully submitted that this case should be dismissed.

Without prejudice to the above, we have set out below our summary submissions. We reserve our right to make further submissions and adduce such evidence as may be required.

3. Background

The Respondent is an expert advice service linked to all state and community agencies to provide motivation and assistance to the long term unemployed. The Complainant is a former employee of the Respondent. In his complaint form he refers to his date of commencement of employment as 28 April 2001. This is incorrect. The Complainant commenced employment with the Respondent on 28 May 2001 and commenced employment as a Mediator on 29 April 2002.

On 18 December 2014, following receipt of a request from the Complainant, the Respondent granted the Complainant a one year career break to commence on 23 February 2015 with the Complainant returning to work on 22 February 2016. It was by no means a certainty that the Complainant would return. If he wished to return, he could do so. It was made entirely up to him but, as a condition of the career break, the Complainant was required to contact the Respondent by 31 October 2015 to confirm his intentions in relation to returning to his role. This was the approach taken in relation to the Complainant's career break and it was the approach taken by the Respondent in granting other career breaks. Those breaks, and the Complainant's break, were granted for a period of one year. They are made subject to the employee confirming, by a specific date, that the employee intends to return to his or her role. Examples of this consistent approach, supported by evidence, can be provided if required.

The Complainant did not contact the Respondent by 31 October 2015. Despite correspondence from the Respondent on a number of occasions during November 2015, the Complainant failed to confirm to the Respondent his intentions. Instead, he informed the Respondent that he would not be in a position to confirm his intentions regarding returning to work until January 2016.

The Respondent during this time continued to include the Complainant within to its business plans and related applications.

It wrote to the Complainant setting out the position in relation to employment and the reasonable requirements applicable to the Complainant.

The Complainant resigned from his employment by letter of 21 January 2016 in which he provided the Respondent with one month's notice. In the Complainant's own words from his complaint form and circulated well after the resignation:

"The whole tone of correspondence received from my employer I felt was antagonistic, which I felt left me no option but to give my notice fearing that I would receive unfavourable treatment should I return."

Following this resignation, the Respondent sent the Complainant his P45.

The Respondent submits that the Complainant had remained an employee up to the date of his resignation. He then voluntarily and without any justification whatsoever resigned from his employment.

4. Conclusion

We respectfully submit that the Complainant's claim is unwarranted and misconceived. It should be dismissed. He was not dismissed by the Respondent. The Complainant went on a career break. It had been by no means clear on the date on which the career break was granted that he would return from it. It is common for staff who go on career breaks not to return to their positions. He was required to confirm his intentions towards the end of the period of the break. He did not do so. The Complainant then resigned voluntarily. At no stage prior to his resignation (or indeed in his letter of resignation) did he raise a grievance with the Respondent. Had he done so, the Respondent would have been afforded an opportunity to investigate any complaint which the Complainant perceived he had. It is respectfully submitted that his letter of resignation is consistent only with a voluntary resignation.

3:        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.

4:        Issues for Decision:

The Complainant resigned from his employment in writing on the 21^st of January 2016.

Is there now, using the accepted norms and procedures, a sustainable case for a claim of Constructive Dismissal?

5:        Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977, Natural Justice and Fair Procedures. LRC Guidelines in S.I.146/ 2000

6:        Decision:

6:1          The Law in cases of this nature is well set out.

Constructive dismissal is defined in section 1 of the Unfair Dismissals Act 1977 as follows:

"(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 of the termination to the employer."

While each case has to rest on its own facts it is generally accepted that there are accordingly two tests for constructive dismissal, the 'contract test' and the 'reasonableness test', either or both of which may be invoked by an employee.

 In addition the Burden of Proof lies heavily on the Complainant in seeking to establish that his resignation was not voluntary. In Employer v EmployerUD1146/2011, the EAT held as follows:

 "This was a case of constructive dismissal and in such cases a high level of proof is needed to justify the claimant's involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary."

 Obviously there may be cases where relevant and pertinent information may lie in the Respondent’s control but accepting that where all information has been exchanged (accepted by the parties in this case) the onus rests of the Complainant.

 6:2        As all cases must rest on their own basic facts it is useful to summarise these as they were presented in evidence.

 The Complainant commenced employment with the Respondent in May 2001.

In late 2014 he sought and was granted a one year Career Break – Respondent letter of the 18^th December 2014.

The Career Break was to end on the 22^nd February 2015.

The letter stated that

“The Board request that you contact the Co-Ordinator by the 31^st October 2015 to signify your intentions in relation to returning to your role within the company”.

The specified date passed without any contact and the Respondent wrote to the Complainant on the 3^rd November 2015.

The letter contained the following sentence

“In the absence of such a letter, the Board would like to confirm your intention to abstain from returning to work following this career break, on the previously agree, 22^nd February 2016.”

 The Complainant replied on the 6^th November 2015. He apologised for any misunderstandings regarding the date of his contact with the Board ( he had initially deferred his commencement of Career Break by approximately three weeks and believed that a pro rata extension of his requirement to state his intentions had been also agreed in December 2014) .

 The letter stated that he was pursuing a business development programme and was not likely to have commenced trading this side of the New Year. He stated

“I do not believe, therefore, that I will, be in a position to give clarification of my intentions until January”

The Respondent replied on the 16th November 2015 stating that

“He (the former Co-Ordinator) and the Board further contends that you would be due back to work one year after the day you started you’re the career break and that all agreements made at that time by the letter (18th December 2015) ,are still valid.

Please find attached the letter outlining the agreement made with you prior to your Career Break.

The board has reaffirmed that it is their intention to abide by the terms of that agreement”

No further formal communications passed between the parties until the 18^th January 2016 when the Complainant , on foot of having seen what he took to be his position advertised on the FAS website, contacted the Respondent by E mail to seek clarification.

He stated that

“It is imperative, therefore, that I receive clarification in writing prior to that time (21st January 2016) in order to facilitate me make my final decision and honour my contractual obligations.”

A reply issued on the 21^st January 2016 by registered mail and was received on the 22^nd January.

The Complainant wrote and hand delivered his letter of resignation on the 21^st January 2016.

 6:3        In view of the above facts it is now appropriate to move to a consideration of the key questions by considering the standard tests: Contract and Reasonableness

 6:4        Contract Test

The key question is whether or not the Respondents repudiated the Complainant’s contract of employment

The classic guidance is the extract from Lord Denning’s description of the contract test in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332

 "If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance."

 In evidence the Respondents clearly indicated that they were operating on the basis that the Complaint would be coming back to work on the due date. There was no evidence of any nature indicating to the Complainant that his positon would not be available to him. There was no correspondence from which an inference could be drawn of a termination.

 It was clear that the Complainant’s position was advertised on the FAS website in January 2016 as a precautionary step in case the Complainant, whose intentions at his time were still unclear, choose not to return. It was explained by the current Co-ordinator that as the funding for all positions came ultimately from the Dept. of Social Protection it was important to have the positon “active” at all times in case the Dept. might withdraw funding. The nature of the funding model would have been well known to the Complainant. The Respondent re affirmed at the oral hearing that the Advertisement did not in any way imply that the job would be offered to any other candidate should the Complainant return to work or more importantly that it was tantamount to a formal ending of the Complainant’s job.

 The Complainant alleged that the Respondent should have given him Minimum Notice and other legal termination entitlements and by not doing so was in breach of Contract.

 The Respondent argued that these payments do not arise in the case of a voluntary resignation.

 The Complainant consistently argued that his entitlements under the Minimum Notice and Terms of Employment Act 1973 and original contract of employment had a superior legal position to anything in the Career Break agreement between the parties. He argued that the 30 day notice period to which he was legally entitled was the only legal notice period that he had to abide with regarding declaring his intentions as to whether or not he was or was not returning. The Career Break letter of 18^th December 2014 was, in his view, at best a request by the Employer and not a legal issue.

 I did not accept this argument in the context of a Career Break, Career Breaks are a well known phenomenon, other members of the Respondent’s staff had availed of them and the requirement to give early notice of a return decision is a common feature. To insist simply on a 30 day notice period to an employer would be unreasonable. To possibly use this 30 day notice period as a means of postponing a final decision as to whether or not to return is equally unreasonable.

 The letter of the 18^th December 2014 granting the career Break is a basic document and was not supported by a back up set of rules and conditions as would be normal in most employments. Employer brevity is not a virtue in these situations. However it did contain the key dates of the Career Break and the date of a requirement to notify intentions as to whether or not the employee would be retuning. Any normal reading of it in an employment context would have taken it to be an Agreement between the parties and the employee /employer to be bound by its terms.

 I did not accept that it was not binding on the parties especially the employee in this context. It did not provide a sufficient context to the Complainant to justify his vagueness about his return decision.

 The Respondent continued to list the Complainant and his position as a member of staff in funding correspondence with the Department of Social Protection – correspondence given in evidence.

There was no correspondence presented, orally or in writing, that would have shown that the Contract of Employment had been or was being terminated by the Respondent.

 Overall a breach of Contract is this Constructive Dismissal context has to be fundamental and going to the root of the relationship.

 Having carefully considered all the evidence I can not find satisfactory evidence that the Respondent was at fault on the Contract grounds, to justify the claim of Constructive dismissal.

 6:5        Reasonableness Test

A good definition of Reasonableness has been given by the EAT In Marcus Reid v Oracle EMEA Limited UD1350/2014, where the Tribunal noted that:

 "The burden of proof rests on the claimant to show that he had no choice but to leave his position with the Respondent. He must show the Tribunal that his resignation was not voluntary and that the conduct of his employer was so unreasonable that he had no choice but to resign."

 In his Workplace Relation’s Complaint form the Complainant stated that

“The whole tone of correspondence received from my employer was antagonistic, which I felt left me no option but to give my notice fearing that I would receive unfavourable treatment should I return. Having worked for nearly 14 years with the Company where an open communication policy was always in effect, it is perplexing as to why a simple phone call could not have been made which could have easily clarified my position or intention. I feel that this is a total deviation to normal practice and was cold and calculated in such a way as to make my return impossible.”

 A Board member of the Respondent gave oral evidence. The Board is a Partnership body comprising representatives from a cross-section of business, Trade Union, Voluntary and Community Groups. It is funded by the Department of Social Protection. The Board member , a well known Trade Union Official in his outside life, stated that the Board had categorically decided that all issues of this nature and in particular staff matters be handled with the utmost propriety. All matters were to be on the basis of clear written communications and referenced back to Board decisions. Back door informal arrangements and or communications were absolutely prohibited as in their operating context with multiple interests groups potentially involved, informal arrangements would inevitably lead to confusion and misunderstandings. It was for this reason the Board member stated that following the November letters no informal contact, regrading his decision to come or go had been made with the Complainant by the new Co-Ordinator prior to the January 2016 interchanges.

 The Complainant repeatedly referred to his long service and the practices of open communication he was used to – the fact that his immediate superior had himself gone of Career Break deprived him of an informal channel which he could have used to clarify matters informally. It was clear that the Complaint was used to a much more relaxed and informal style of communication with his former superior. This did not preclude him from seeking a meeting with the new Co Ordinator in early January 2016 – even almost to go as far as to lodge an employee Grievance under procedures. This did not happen.

 As regards written communications the Respondent’s letter of the 16^th November 2015 in response to the Complaint’s of the 6^th November did not directly address in plain language the statement by the Complaint on the 6^th November 2015 that

“I do not believe, therefore, that I will, be in a position to give clarification of my intentions until January.

I will observe the 30 day notice clause as in my contract.”

However the Respondent did state that they would be “abiding by the terms of the Agreement”. This left no ambiguity.

 The Complainant’s 30 day point was not addressed directly and this was a weakness in the Respondent’s letter.

 In practice there was a practical obligation, albeit of a slightly lesser nature, on the Complainant to secure clarity and effectively permission from the Respondent in relation to his indications not to declare his intentions finally until January. The Career Break letter of the 18^th December 2014 had a clear Notification date of the 31 October 2015. Even allowing for some slippage in dates the Complainant should have sought further clarification – relying simply on his interpretations of his statutory notice entitlements as stated on the 6^th November letter was in my view too laissez faire an approach by the Complainant.

 The Respondent’s letter of the 16^th November 2015 was, in my view already stated, not robust enough in answering all points directly. – the letter of the 21^st January 2016 from the Respondent was by contrast very detailed and comprehensive.

 The placing of the Advert on the FAS website in January 2016 was badly handled by the Respondent. The Complainant should not have been put in a position of having to read it at first hand without any prior notice. The explanations from the current Co-ordinator about the need to keep the job live with the Depart of Social protection and the need for reasonable contingency planning in a possible recruitment scenario was partially acceptable. The Complainant, as an experienced employee and familiar with FAS & Dept. of SP funding procedures must have been aware of the background

routines here. The Advert, while it was upsetting to the Complainant, was not a formal notice of termination.

 The exchange of correspondence which followed in mid January was instructive and crucial. On the 18^th January the Complainant, having seen the FAS Advert, sent an email to the Respondent, asking for clarification of his position. He asked

“Is the Board relinquishing my entitlement to return? Where do I stand?

In reply a very detailed letter, dated the 21st January 2016, from the Respondent set out the position. However before the letter was received by the Complainant (via Registered mail) on the morning of the 22^nd he had resigned – letter dated the 21^st January – hand delivered.

Effectively the Complainant resigned before the Respondent had an opportunity to respond to his queries of the 18^thJanuary. The resignation at such short notice effectively prevented any discussions.

In view of the long relationship between the parties the Complainant could at least have waited for a formal reply before resigning. The formal reply from the Respondent could I felt have been made the basis of an Appeal by the Complainant or at least the basis for seeking outside assistance /representation.

 There was no evidence that, on receipt of the Respondent’s letter, the Complainant sought to lodge an Appeal. I felt that it was open to him, an employee of some 14 years standing, even after having resigned to make an Appeal – “Rush of Blood to the Head scenario etc.” This did not happen.

 The new Co-ordinator was in regular contact throughout the period of late 2015 with the Complainant on business matters and their relationship could not be seen as antagonistic as implied in the Complainant’s WRC Complaint Form.

 The Complainant stated in his resignation letter that he had had an “excellent working relationship with Respondent for nearly 14 years”. There was no suggestion or evidence, oral or written, of any antagonisms between the parties such as would lead to a resignation decision.

The Respondent’s statement /assertion that he felt that he would receive “Unfavourable treatment” on his return ( stated in the Complaint form) was not supported by any evidence of likely or possible future Respondent negative behaviours. In fact all the signs were that he was a valued employee and had a warm relationship with all colleagues. To suggest that he would be treated differently in the future was an assumption that was not supported by any evidence.

6.6 In conclusion and taking the Unreasonableness Test in its entirety , having considered all the oral and written evidence presented, I failed to find any evidence of Unreasonable Behaviours, of the types identified in many legal precedents , by the Respondent , sufficient to satisfy a claim for Constructive Dismissal.

6.7 Taken in conjunction with the Contract test set out above I found that the letter of resignation of the 21st January 2016 must stand and dismiss the claim for Constructive Dismissal.

Dated:   17^th November 2016