ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003389

Complaints for Resolution:

Date of Adjudication Hearing: 11/08/2016

At:                          Workplace Relations Commission, Dublin 4.

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Act, 1977 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background 

The Complainant was employed by the Respondent from 29^th July2008 until he terminated the employment with notice on 18th March 2016 The employment terminated on 17^th June 2016. The Complainant was paid €3583.00 gross per month and he worked 40 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Respondent.

The Complainant referred a complaint to the Workplace Relations Commission on 31^st May 2016 alleging he had been unfairly dismissed by reason of constructive dismissal.

The Complainant also referred a complaint under the Payment of Wages Act, 1991 on the same date alleging his Employer had breached Section 5 of the Act in that as required by his contract of employment he gave the required 3 months’ notice on 18^th March 2016 but his employment was terminated on 21^st March 2016 and he was paid only until the 21^st March 2016. He is claiming Payment of the balance of his three months’ notice, payment of expenses due on termination and annual leave and Public Holidays from 21^st March 2016 to 17^th June 2016

Summary of Complainant’s Position.

Unfair Dismissals Act, 1977.

The Complainant commenced his employment as a Store Manager in July 2008 and he was promoted to Multi-Unit Manager in April 2014 and to Area Manager in January 2015 at which point he was required to sign a new Contract of Employment. At no stage did he receive any constructive feedback from either the Regional Manager or the Operations Manager.

The Complainant was called to a meeting with the Regional Director in December 2014 at which he was informed that he was not considered suitable to be promoted to Area Manager but he was being promoted on the recommendation of the Managing Director. He was promoted to Area Manager. He was provided with his Contract with a commencement date of 5^th January 2015 but with an end date of 5^th July 2015. He queried this and was informed that this was a probationary period.

In the following six months the Complainant stated that he was Area Manager for some 10 stores. He stated he had been given no training in relation to this new position. He stated that he was asked if he wanted any training but the specifics of any available training was not provided to him. The Complainant stated he was offered a mentor/coach but he declined the offer on the basis that he had a previous difficult working relationship with this person.

He attended a performance review with the Regional Director on 9^th July 2015 at which he was informed that his performance was not satisfactory and his probationary period was extended by a further three months.

The Complainant stated that issues arose in one of his Stores in September 2015, for which he took responsibility, He had a further performance review in October 2015and again his probationary period was extended by a further three months.

The Respondent advertised for three new Area Managers in December 2015 and all three successful candidates were provided with Training and a Mentor.

The Complainant met with the Regional Manager on 11^th January 2016. Also present was the Compliance Officer. The Complainant was informed that his probationary period was not to be extended further and that he was to be demoted to his previous position. The Complainant responded by email dated 15^th January 2016 rejecting the demotion and requesting that he be provided with the appropriate training and tools to perform his role of Area Manager. A further meeting was arranged for 21^st January 2015 at which he was given four weeks to complete his training and he was to be provided with a mentor. The Complainant had his first meeting with his mentor on 27^th January 2016 and he commenced his training. During this time he attended a company function at which a number of his colleagues raised his position with him and asked if he had been demoted. The Complainant was demoted on 8^th March 2015 and the Complainant refused to accept this demotion. The Complainant stated that he then drafted his resignation letter which he issued on 18^th March 2016 with his final day to be 17^th June 2016 and that he would carry out his duties as Area Manager until that date. The Complainant stated that he had not worked since his resignation and this has been confirmed by the Department of Social Protection.

Payment of Wages Act, 1991.

The Complainant stated that he had tendered his resignation by letter dated 18^th March 2016 to terminate on 17^th June 2016. The Complainant stated that the Respondent terminated the employment on 21^st March 2016 and he is claiming payment of the outstanding balance of his three months’ notice period. He is also claiming payment of expenses due to him and not paid.

The Complainant is also claiming payment of all Annual Leave due to him on termination of the employment up to and including 17^th June 2016as well as all Public Holidays between 21^st March 2016 and 17^th June 2016.

Summary of Respondent’s Position.

Unfair Dismissals Act, 1977.

The Complainant interviewed for the Role of Area Manager in December 2014. While it was considered he had poor performance at the interview nonetheless a meeting was held with the Complainant by the Chief Operating Officer and the Company Director of Operations in December 2014 at which he was informed of the necessity to improve his communication skills with Management and to develop his leadership skills. On this basis he was offered the position of Area Manager. He was promoted to the position on a 6 month probationary contract. The Respondent sought to support him by offering him a mentor which he declined. This is common practice in the industry. The Complainant did not offer any explanation for this. The Complainant attended an intense Company Training Programme in Amsterdam in February 2015 at the Company expense. The Complainant was also provided with Training Tools on 19^th February 2015. Training is expected to be completed on a self –motivated basis given the seniority of the position.

The Complainant alleged that he received no feedback during the 6 month probation. This is incorrect and reference was made to notes of meetings held with the Complainant on 5^th April 2015, 13^th April 2015 and again on 5^th May 2015, 11^th May 2015 and 22^nd June 2015 – Notes provided to the Hearing. Further meetings were also held on 4^th August 2015 and in September 2015. The Complainant did not raise any question in relation to his training and his training tools provided to him at any of these meetings.

A performance review meeting was held with the Complainant and the Director of Operations on 9^th July 2015 following which his probation was extended until 9^th October 2015. He was also informed that failure to reach the required standard would mean reverting to his former role.

On 28^th September 2015 the Complainant was given an opportunity to host an event at which invited guests attended and this was given to the Complainant to develop his skills of communication with groups.

A serious incident occurred on 8^th October 2015 when the MD visited one of the Complainants stores at 10am and it was clear that the Complainant had failed to maintain stock in this store which he was responsible for.

There was a further performance review meeting with the Director of Operations and the Chief Operations Manager and the Complainant and again his probationary period was extended but he was informed there would be no further extension. A final performance review meeting took place on 11^th January 2016. At this meeting it was suggested that he was more suited to his previous rile but in an email dated 15^th January 2015 the Complainant refused to revert to his previous role. Following discussion the Company did agree to extend the probation for four weeks during which he would attend a 4 week training programme complete with a compulsory mentor. This was agreed with the Complainant at a meeting on 21^st January 2016. The Complainant raised no objection to his named mentor. This was the same mentor he had previously declined.

A number of meetings were held between the Mentor and the Complainant, the first on 27^th January 2016. The Training Programme was extended for one week to 8^th February 2016 and this was extended again to 16^th February 2016. In February 2016 the Complainant attended an IBEC Management Training Programme at the Company’s expense.

A meeting was held on 7^th March 2016to review his performance following the training programme. The outcome was that the Complainant had failed to reach the required standard for the position of Area Manager. The Complainant was demoted to his prior post of Multi Unit Manager but as a concession he was to remain on the salary scale applicable as Area Manager so there was no loss of earnings. The Complainant refused to accept the demotion by email dated 8^th March 2016. The Company responded also on 8^th March asking him to reconsider his position.

The Complainant met with the Director of Operations on 14^th March 2016 to discuss his position. However the Complainant resigned verbally at the start of the meeting. His letter of resignation dated 18^th March 2016 was received. The Complainant was paid in lieu of notice to 17^th June 2016 – evidence provided.

The Complainant did not raise any internal grievance prior to his resignation

Payment of Wages Act, 1991

The Complainant submitted two complaints to the WRC. One related to expenses which are not covered by the Payment of Wages Act, 1991 and the second related to payment of Annual Leave and Public Holidays up to 17^th June 2016. The Complainant’s final payment in lieu of notice included 4 days annual leave due to the Complainant on termination of the employment

Findings

Unfair Dismissals Act, 1977.

On the basis of the evidence and written submissions from both Parties I find as follows:

Section 1 (1) of the Act defines what is commonly described as “constructive dismissal” 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 notice of the termination to the employer”. 

There are essentially two tests that an employee can argue in a complaint of constructive dismissal. – There must be a significant breach of the contract of employment by the employer and the Complainant must have acted reasonable in tendering the resignation. 

There must be a significant breach of the contract of employment by the employer.

The Complainant was promoted to Area Manager on 5^th January 2015 on a 6 month probation contract which was extended on a number of occasions to enable the Complainant to endeavour to improve his skills. The Complainant was assigned a Mentor which he refused without offering any explanation to the Respondent. However he did accept the Mentor in January 2016 and he did participate in training with the assigned mentor. The Complainant stated in his submission that he received no training for his new role as Area Manager. However he did confirm he attended a Training Programme in Amsterdam and he stated he was provided with the Training Tools which are web based. The Complainant asserted that he did not receive feedback but confirmed that he did in fact receive feedback at a number of dated meetings. The Complainant did not raise any grievance with the Respondent during the course of his employment and in particular he did not appeal the decision to demote him in accordance with the Grievance Procedures of the Company which he confirmed he had been provided with.

I find there was no breach of contract by the Employer.

The next question to be addressed is did the Complainant act in a reasonable manner in tendering his resignation. The evidence from both Parties was that at a meeting with the Director of Operations on 14^th March 2016 he was informed that despite his demotion to his prior position he would continue to receive the salary of Area Manager and he was be assigned to a Development Programme to assist him in his performance.. The Complainant refused to accept this.

The Complainant also did not appeal the decision to demote him in accordance with the Grievance Procedures of the Company.

I find that the Complainant did not act in a reasonable manner in tendering his resignation.

Payment of Wages Act, 1991.

Both Parties confirmed at the Hearing that the Complaint had been paid his three months’ Notice period up to 17^th June 2016.

The second element of this complaint related to payment of expenses which both Parties confirmed at the Hearing had been paid to the Complainant. Section 1 (1) of the Act specifically excludes expenses from the definition of wages under the Act.

The third element of the complaint relates to Public Holidays during the period 21st March 2016 to 17^TH June 2016. There were three Public Holidays in this reference period namely 28^th March – 2^nd May and 6^th June 2016. The evidence from both Parties was that the Complainant was not required to attend work during this period but he continued to be paid his monthly salary up to 17^th June 2016. Therefore the Complainant has been paid for each Public Holiday in the reference period.

The fourth element of the Complaint relates to payment of annual leave accrued from 21^st March to 17^th June 2016. Both Parties confirmed that the Complainant had been paid 4 days annual leave accrued but not taken up to 21^st March 2016. Both Parties confirmed that the complainant was not required to work his notice period but he was paid up to 17^th June 2016. While this complaint has been lodged under the Payment of Wages Act, 1991 rather than the Organisation of Working Time Act 1997, I find that the Complainant is not entitled to accrue annual leave during the notice period which he was paid for but not required to work.

Decision

Unfair Dismissal Act, 1977 CA-00005337-002

On the basis of my Findings above and in accordance with Section 8 of the Unfair Dismissals Act, 1977 I declare the complaint of unfair dismissal is not well founded.

Payment of Wages Act, 1991 CA-00004957-001 -002

The Complainant confirmed that he had been paid three months minimum Notice on termination of his employment. Therefore I declare this element of the complaint is not well founded.

The Payment of Wages Act at Section 1 (1) of the Act excluded expenses from the definition of wages as set out at Section 5 of the Act. However both Parties confirmed that the Complainant had been paid all outstanding expenses.

The third element of the Complaint relates to payment of Public Holidays to the Complainant during the Notice Period when he was not required to work his notice but he continued to be paid his monthly salary over March to June 2016. I find there is no breach of the Payment of Wages Act, 1991 in relation to this element of the complaint.

The fourth element of this complaint relates to the Complainants claim for payment of annual leave accrued during his notice period although he was not required to work from 21^st March to 17^th June 2016. I find this element of the complaint is not well founded.

In accordance with Section 41(5) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 I declare the complaints are not well founded.

Date: 7 November 2016