ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001273
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00001682-001 | 25/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00001682-002 | 25/12/2015 |
Date of Adjudication Hearing: 12/04/2016
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, and/or Section 13 of the Industrial Relations Act ,1969 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:
I started with the Company as a loss prevention officer on five months probation, classed as a casual employee. Within the five months, I had assumed significant additional responsibilities both as my manager had an illness and generally. Although I was lead to believe that I could accrue time-in-lieu for bank holidays, I was informed later that I could not as I was casual. At all times during my employment, I was told and lead to believe that my casual status was only temporary, and that I would be made permanent / full-time. Despite these ongoing assurances, and despite the fact that I was undertaking an increasing number of managerial duties in my day-to-day work, when I asked my employer about being made full-time the issue was constantly delayed. As a result, I was under an increasing great deal of stress and anxiety in my work and personal life, and was disadvantaged in the terms and conditions of my employment. The constant stress and anxiety was an increasing burden upon me and made my working life impossible. The situation became acute in June 2015 when I was told that a planned re-structuring, upon which I had by then been told that my being made full-time was contingent, was being put off again. On 26th June 2015 I could no longer work and was left with no alternative but to leave my employment owing to the actions of my employer and the effect upon me. |
I was acting as a de facto manager insofar as, since I began my employment, I undertook an increasing number of managerial duties, and was constantly advised by my employer that I would be made full-time / permanent. Notwithstanding the aggrandisation of my role and the assurances I received, I was kept as a casual loss prevention officer until I had no choice but to leave my employer's employ. |
Respondent’s Submission and Presentation:
Did not attend hearing and no submission was received.
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.
Section 13 of the Industrial relations Act, 1969 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the Act.
Issues for Decision:
UD Act, 1977 - Constructive Dismissal
Industrial Relations Act, 1969 - Failure to offer permanent appointment
Legislation involved and requirements of legislation:
UD Act, 1977 - Constructive Dismissal
Industrial Relations Act, 1969
Decision:
UD Act, 1977 - Constructive Dismissal
Clear oral and extensive documentary evidence was given by the Complainant. The evidence was convincing. It was clear that her numerous efforts to secure a detailed statement of her position and some indication of her future status as a permanent/temporary staff member etc. from the Respondent were of little avail. None the less she appeared to have been given and accepted without complaint roles of greater Managerial responsibility with the passage of time.
The nature of her position as a key member of the in House Loss prevention/ Security team which was well documented in Respondent documentation given as evidence by the complainant, made the ongoing ambiguity of her future status particularly acute for her in her already stressful Loss Prevention/Security role in a major Dublin institution.
She acknowledged that she had not taken a formal route in terms of a Grievance under the Respondent’s procedures but felt that she had raised, documented in evidence, the issue on numerous occasions with her Manager and with the HR Director. The special nature of her Security /Loss Prevention role and its relationship with staff did not really lend itself to taking formal IR / Grievance proceedings. The Company is Non Union.
Additional matters in relation to payroll processing –conflicting Managerial instructions in regard to Public Holiday treatment, delays in payments for additional Training duties –added to her distress.
None the less the Complainant did act somewhat hastily in her resignation but on balance I felt her decision and the claim of Constructive Dismissal were well founded.
The Respondent did not attend the hearing to offer any alternative evidence or explanation.
The Adjudication officer was satisfied that the Respondent had been properly notified of the hearing. The hearing was postponed on the day for a considerable period to allow for additional contacts, to no avail, by telephone with the Respondent.
Industrial Relations Act , 1969
In relation to the dismissal elements I make no finding on this element of the IR Act claim as the matters involved have already been covered by the UD Act claim above.
In relation to the general communication practices and the confusions /changing Respondent positions that she was subjected to I find that a considerable degree of distress was occasioned to the Complainant and some redress is warranted.
Redress
UD Act, 1977 - Constructive Dismissal
As the Complainant secured another temporary (28 week) contract with another Employer on similar rates of pay on the 28th of July 2015 to end February 2016 this period has to discounted.
She is currently unemployed since the ending of this contract in February 2016 and is in receipt of Job Seekers payment.
Taking all the circumstances into account (including a reduction of 25% for her somewhat hasty resignation) I award a figure of € 13,500 (approximately 6 months pay) as redress for the Dismissal.
This is compensation for earnings and as such is subject to taxation.
In view of the background and the evident loss of trust in the relationship I felt that Compensation rather than Reinstatement or Reengagement was the only suitable remedy.
Industrial Relations Act, 1969
As compensation for the distress occasioned to the Complainant in relation to changing Respondent management practices , general ambiguity in communications and a break down in trust necessary in Loss Prevention/ Security positions I award a sum of €2,000.
This is Compensation for breach of rights and as such not subject to payroll taxation.
Dated: 9th September 2016