ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002481

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

Date of Adjudication Hearing: 23/05/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

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

The complainant submits that he was constructively dismissed from his employment. His position was that of site supervisor and he was paid €10.75 per hour and worked 43 hours per week. His employment transferred to the respondent as a result of a TUPE in June 2008. The customer had indicated in July that it wanted the complainant removed from the site. The respondent indicated to the customer that there were no grounds on which its requirement could be met. On the 30^th of July the respondent requested the attendance of the complainant at an investigation meeting concerning an allegation that he failed to carry out certain duties requested by the customer and in respect of his attitude toward the customer. The respondent informed the complainant that it intended to share details of the investigation with the customer.

A new roster was unilaterally implemented on the 10^th of August. Staff agreed to work to work the new roster under protest. Employees were informed that the customer was dictating matters in relation to the rosters and that the respondent had no option but to comply. The complainant was now required to work the same number of hours over a longer period which severely disrupted his ability to care for his mother in her home. He raised a number of grievances with the respondent by e-mail on the 13^th of September and followed with reminders on the 17^th inst. and on the 1^st of October. The trade union wrote to remind the respondent on the 14^th of October. He was suspended with pay on foot of an instruction made by the customer on the 23^rd of October. He was informed that he would receive details of the complaint made against him by the customer by text message on the same day. It was later confirmed that the suspension was not in response to any disciplinary matter. He resigned with immediate effect on the 27^th of October. The respondent asked that he would reconsider. He met with the respondent on the 4^th of November. It was confirmed at the meeting that he was removed from his position at the request of the customer and that a return to work on that site was not possible. It was further confirmed that there was no fault found with his work and that clients of the respondent were in a position to dictate who would work on their sites. He was offered hours of work which were incompatible with his caring responsibilities. He received a letter of response to his grievances on the following day. It is submitted that the implied term of mutual trust has been breached in this case - by the alteration of the roster at the behest of the customer, acting upon the instruction of the customer to take investigatory and disciplinary action and by suspending him from duty at the behest of the customer the respondent showed itself to be no longer bound by a fundamental term of contract and the complainant was entitled to consider himself as having been dismissed. He made every reasonable effort to resolve his grievances with the respondent who failed to address the same in the period 13^th September to 27^th of October. In essence the respondent “placed commercial interest above its moral and contractual responsibilities” to the complainant.

Respondent’s Submission and Presentation:

The respondent submits that it was obliged to change the system of operation on the particular site where the complainant worked with attendant consequences for all employees. In particular the customer was aware that it was operating successfully at other similar sites and required a change of operational procedure reflective of the same. The complainant was acutely aware of the difficulties being experienced on the site and was included in all staff communication in the matter. He was asked to attend a meeting to discuss the upcoming changes in July (months before his resignation) but he did not attend. The requirement that he change his shift arrangement (to a split shift) was a temporary fix to conclude on the appointment of the site manager. The respondent was aware of his carer commitments which it understood were shared with other members of his family however no mention was made of the same contemporaneously and indeed it was conceivable that the shift change would have had a positive effect in that regard. The respondent was actively looking for a suitable alternative site for the complainant when it received his resignation. In essence the complainant was given ample notice of the changes required and he had every opportunity to discuss them. The respondent was in active communication and discussion with the trade union throughout. He worked to the changes albeit under protest along with his other colleagues. He was contracted to work a particular number of hours however it was not stipulated as to how those hours were to be worked. The respondent acted reasonably in all of the circumstances and the complainant did not utilise the grievance procedure in the fullest sense.

Decision:

UD - s. 1. - [(1)] (c) (b) of the Actprovides - that dismissal, in relation to an employee, means - The termination by the employee of his/her 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 constructive dismissal the complainant must satisfactorily demonstrate that the respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for him/her to continue in the employment and which fundamentally breached his/her trust and confidence in the bona fides of the other party. In so doing the claimant must also show that his/her action/behaviour in resigning his/her position was reasonable in all the circumstances (mirror image concept). It is clear in the instant case that the respondent was attempting to deal with the obvious difficulties arising on the particular site. It is also clear that it was attempting to deal with the issues arising therefrom as thy affected the complainant. It was also a fluid process. The resignation was precipitate in all the circumstances and was therefore unreasonable in all the circumstances.

Accordingly I find that this was not an unfair dismissal and therefore the complaint is not well founded.

Dated:   9^th November 2016