ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002550

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

Date of Adjudication Hearing: 15/09/2016

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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:

Respondent’s Submission and Presentation:

The Respondent made a verbal submission supported by documentation. The Respondent denies that there were good grounds for the Complainant to leave his employment in a constructive dismissal manner. The Complainant has not identified the specific incidents or circumstances which he is relying on in his constructive dismissal claim. He has not adduced any evidence of unreasonable conduct on behalf of the Respondent. The Complainant did not raise a grievance in relation to the matters he now appears to complain of. The Complainant was moved to another location due to business needs. The Complaints absenteeism history was submitted and the Respondent argued that it had very reasonable grounds for issuing warnings to the Complainant based on breaches of company policy. The Complainant did appeal the warnings but was unsuccessful in his appeals. The company were very sympathetic to the Complainant by not pushing the Complainant through the disciplinary system and by reducing the timeframes of warnings issued to the Complainant. The Complainant requested a new pair of safety shoes and these were ordered and a slight delay occurred as the shoes were being sent out from the supplier as part of a total package of goods ordered from that supplier. It was not accepted that the shoes he had were in a hazardous state. All the Complainants grievances were investigated and fairly evaluated. The Complainant was given the use of the Company EAP plan. The Complainant was absent from work for much of 2014 and 2015. During his absences the respondent kept in regular contact with him, met him on a number of occasions, facilitated him by regularly rescheduling meetings to ensure he was available, permitted him to be accompanied by his solicitor, offered the services of the Employee Assistance Programme and arranged for him to attend Occupational Health Specialist on three occasions to ensure that any health concerns were addressed professionally and appropriately and necessary accommodations were put in place to support him in the workplace. The Complainant returned to work on a phased basis on November 5^th 2015 and worked 11 days (plus two half days) before resigning on 28 November 2015.

Decision:

Section 41f 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 (1b) of the Unfair Dismissals Act 1977 states that “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 essence what I have to determine is was the conduct of the employer such that the Complainant had reasonable grounds to terminate his employment. This test is a high one to pass unless the grounds for leaving the employment are obvious.

While a variety of issues were introduced during the Hearing the Complainant relied on two main grounds for terminating his employment;

1. That he was being harassed arising out of his attendance/providing medical certificates issues

2. That he was not supplied with a proper pair of safety shoes quickly enough

On the first issue the Complainant acknowledged at the Hearing that he had not been in compliance with the Company policy to submit medical certificates in line with the company policy for submitting medical certificates. This was not a one off incident but happened on a number of occasions. Therefore this issue cannot be grounds for him resigning due to the action of the Respondent.

On the issue of the safety shoes the grounds advanced by the Company for the delay, two days it seems, appear reasonable. The Complainants shoes did appear worn but he had taken the action to go out and buy his own pair of safety shoes because he did not like the delay, therefore it was not the safety risk of having to wear inadequate, in his view, safety shoes that caused him to feel aggrieved but the actual delay itself. He stated in his submission that he went out the same day that he raised the issue with his Manager and bought the shoes directly himself at Woodies. While I understand that the Complainant may have been nervous at work from a safety perspective due to the previous accident the delay of a few days in getting a pair of safety shoes is not reasonable grounds to leave your employment. I do feel that the Respondent should have, due to the particular circumstances in the Complainants situation, acted faster or taken an initiative to leave the Complainant go out immediately and buy his own safety shoes and reimburse him. However, this is merely a comment in the particular circumstances rather than a justification that the Complainant had reasonable grounds to leave his employment. However, I do note that the shoes arrived, and the Complainant acknowledges this, very quickly after they were ordered.

With regard to historical issues they do not form a serious part in my deliberation as they occurred quite a significant time before the Complainant resigned and given that he only worked 11 days in all of 2014 and 2015 the issues he says caused him to resign happened over such a minor few days of employment prior to his resignation that high significance cannot be given to them due to that context.

I note that the Complainant stated in his email dated November 30^th 2015 to the company that ”I am aware that Im supposed to work my notice but cannot as I have an injury to my hand at the moment”. This critically implies to me that the Complainant would have worked his notice but for the injury to his hand. This has to be a consideration in determining how perplexed the Complainant was about continuing to work for the Respondent at the time of his resignation.

While I sympathise with the Complainants position his grounds for leaving the Respondents employment were not reasonable as outlined above and therefore did not justify him terminating his employment and accordingly his claim for Unfair Dismissal is not well founded.

Dated:   17^th November 2016