UD1063/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1063/2015

CLAIM(S) OF:                                                                                            

Colm Doyle                                                                                                

- claimant                                              

against

South Dublin County Partnership Limited

 - respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. M. Levey BL

Members:     Mr. G. McAuliffe

                     Mr. J. Flannery

heard this case in Dublin on 17^th August 2016 and 18^th October 2016

Representation:

_______________

Claimant(s):

             No legal or trade union representation

Respondent(s):

Mr. Conor O'Gorman for Ms. Roisin Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:-

The employment began in late 2011 and ended in late 2015. Constructive dismissal was claimed.

Giving sworn testimony, the claimant said that he would place workers for the respondent for the Department of Social Protection. He alleged that the head of the respondent had wanted numbers of placed workers kept up so that funding would be maintained. People had to be placed in jobs. The claimant started placing people who were drug-addicted just to keep numbers up. The claimant’s “performance went through the floor”.

The claimant was asked to whom he had to complain. He replied that he had to complain to his line manager (MK) but that his problem was with the CEO of the respondent (hereafter referred to as LX) and that all came from this. When it was put to him that he had not given the respondent an opportunity he replied that there was no-one above LX. Asked if he had spoken to LX, the claimant replied that he “was just in shock” and that “this led to (his) performance going through going through the floor”. The claimant asked: “Who could I tell?”

When it was put to the claimant that he had not explored the grievance procedure route he replied that he “felt there was no avenue open to (him)”. He spent September to mid-December placing people who were not suitable. He went sick. LX wanted to speak to him. He was put on notice of disciplinary action and was told that he could bring a witness. He went till April with a disciplinary hearing hanging over him. Succumbing to stress, he ultimately resigned and claimed constructive dismissal.

The claimant told the Tribunal that he had got correspondence to see the respondent’s doctor. There was an issue about inconvenience and (taxi) cost. The respondent offered to pay for public transport to help him.

The claimant told the Tribunal that he had become “flat broke” and intended to resign. He spent over three months waiting to see a doctor. He “felt under pressure to resign”. There was e-mail correspondence but he “could not take any more”. He was never told of the allegations against him. He felt he had no chance. He had a Rights Commissioner hearing on 12 October. He had resigned by then.

Since then the claimant had been on illness benefit to February 2016. Asked if he had taken legal advice, he replied it was too expensive to do so. From February 2016 to June 2016 he was available for work. He installed water pumps and filtration systems.

The claimant told the Tribunal that he had got e-mail from LX but that the respondent knew he was taking a constructive dismissal and the claimant, treating this correspondence with contempt, resigned.

It was put to the claimant that he had resigned with one person and had then engaged with another. The claimant replied that he had waited over three months and that, on 24 June, the respondent had been aware of his grievance. He had been out sick over Xmas. The claimant said that he had to wait months for a company doctor. He had a wife and two children and a mortgage.

The respondent’s representative now stated that he wanted to address the Tribunal and asked for a direction (that the claimant had not made out a case for constructive dismissal) on the grounds that the claimant had never invoked the grievance procedure and that the respondent had never invited him to a disciplinary hearing.

The claimant asked to call a witness.

The respondent’s representative continued by saying that there had been no disciplinary case against the claimant. In January 2015 the claimant said that his work had fallen below standard. LX said to him that he had to pull his socks up or there would be a disciplinary hearing.

The claimant said that it had been verbally that he had been told of disciplinary matters.

Giving sworn testimony, MK (the claimant’s line manager) told the Tribunal that she had told LX all and suggested a disciplinary hearing against the claimant. LX had said this was appropriate.

MX spoke to PT (her line manager) but they did not start disciplinary matters.

The claimant said that MK had not been happy to do disciplinary steps herself and that he was put on notice by the CEO.

Questioned by the Tribunal, MK said that the claimant had been putting people into wrong places.

Under cross-examination, MK said that she had not been aware of LX talking to the claimant. She left the respondent in 2015. Asked about discipline, she told the Tribunal that LX had accepted that she (and PT) would review all staff as a collective.

After a recess to consider, the Tribunal ruled that it would not grant a direction but would assign a full day to conclude this case.

In cross examination the claimant accepted he did not raise any formal grievance after the meeting on September 2014, because he did not believe there was anyone else to bring it to as “everything started and finished with LX”. With regards to the claimant not responding to LX’s letter on 23^rd September, the claimant believed all trust was lost by that stage.

HM and SS both gave evidence of attending the meeting on September 2014 and how they both believed that their role was now about quantity over quality with regards to placements. LX had explained if numbers remained low then it would have impact on all staff.

LX , CEO of respondent company, gave evidence of operating from 29 different support schemes . Regards the meeting in September 2014 with the team leaders, LX explained that funding was linked to numbers and the numbers were below the mark.

With regards talking to the claimant in January 2015, LX said it was due to poor performance and attendance issues which were going unrecorded. He advised the claimant to ‘pull up his socks’ or else there could be a disciplinary hearing. The claimant’s performance improved thereafter and LX considered the matter closed.

On cross examination LX denied any breach of contract with regards filling positions and stated that they needed to be looking at placing every candidate and that there would have to be a very good reason not to do so as it had further implications for the candidates.

Determination

As this is a claim of constructive dismissal the burden of proof, which is a very high one, lies with the claimant.

Notwithstanding the fact that the grievance was with his employer, a claimant must invoke the grievance procedure and by not doing so, the claimant denied the respondent the opportunity to truly investigate the heart of said grievance. The Tribunal also finds that the respondent acted reasonably in their dealings with the claimant and was both fair and objective throughout. After considering all the evidence the Tribunal finds that the claim under the Unfair Dismissals Acts 1997 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)