ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001808

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

Date of Adjudication Hearing: 16/06/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.

Complainant’s Submission and Presentation:

The complainant was employed as an Administrative Assistant in June 2015 by the respondent company which is a training organisation.

He says that his claim for constructive dismissal is based on the following narrative.

The first incident which gave rise for concern related to an application for two weeks annual leave from December 14^th to 28^th 2015 so that he could return to his native country.

While this was, in fact, approved he says comments were subsequently made to him critical of his taking the leave and its adverse impact on the business of the respondent. In the event there was no adverse impact.

He returned to work in January but in a response to pressure placed on him he was forced to take stress related leave which was medically certified. He accuses the respondent of being ‘disruptive’, of making negative or other inappropriate comments about his work

He returned to work on February 5^th 2016 and says he attended a ‘formal grievance hearing’ on that day.

In fact, two meetings took place at which he says he aired grievances in relation to his treatment and specifically that he did not have a contract of employment. In the course of this meeting the respondent allegedly indicated that he was going to terminate his employment.

He decided that in light of that there was no point in remaining and he resigned his position.

Subsequently he learned that a public job advertisement had been placed on January 28^th for what he regarded as his job.

In respect of the statement of Terms of Employment Information statement the complainant said he had never seen the copy of the statement which the respondent showed at the hearing and which it was claimed was given to the complainant.

The complaint under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 was withdrawn at the hearing.

Respondent’s Submission and Presentation:

The respondent denied that there had been any adverse comment about the complainant taking annual leave. It said that the job of the complainant was at a relatively low level in the company and it had made arrangements relatively easily to replace him for the duration of his absence. There was an issue as a result of the complainant not presenting for work on the last day before the leave period.

As to the events of February 5^th 2016 the respondent says that no formal meetings took place with the complainant on that day and that at no stage was he told that his employment was at risk. The company was in a period of growth and the job advertisement of January 28^th to which the complainant referred was for an additional position. Since the departure of the complainant his position has been replaced and the ‘January 28^th’ position also remains filled, confirming that it was not a replacement for his position.

The respondent was unclear about whether the formal grievance letter was received or not and said that it felt that the complainant was ‘not feeling himself’ on the day in question.

In respect of the statement of Terms of Employment Information statement the respondent exhibited a copy of the statement which it says was handed to the complainant and says this handover was witnessed by two others.

Conclusions and Findings

I have considered all the relevant oral and written evidence that was laid before me before and in the course of the hearing.

This hearing was characterised by marked conflicts in the evidence and an equally marked absence of corroboration on both sides. Every assertion was challenged.

The complainant said that the meeting on February 5^th 2016 was a ‘formal grievance meeting’ which took place in one of the company’s meeting rooms. Initially the respondent denied that any meeting of any sort had taken place in the course of that day.

It transpires that, what ever it was this encounter was anything but a ‘formal grievance meeting’.

There had been no prior notification of a grievance and no meeting was arranged in advance.

In fact it also turns out there was more than one alleged ‘meeting’ in the course of the day.

The respondent denied ever having seen the letter of grievance or of having indicated to the complainant that his job was at risk. Eventually, it was agreed that there had been a number of encounters that day as the respondent stated that he had formed some impression about the state of the complainant’s well being. But it seems that ‘encounter’s is about as far as one could go in describing the interaction between the parties.

The complainant knew enough about his workplace rights to raise a formal, written grievance, and in the letter doing so he itemised the complaints and said he had ‘no option but to request a meeting with you, where I will provide instances of the aforementioned behaviour’.

Yet the best that could be established, if indeed anything was established was that this letter requesting a meeting was handed over in the course of an encounter which the complainant subsequently described in his complaint as the ‘formal grievance meeting’. Clearly it could not have been and I find that it was not.

The issue for decision is whether the events surrounding the annual leave in December 2015 and the events of February 5^th 2016 are sufficient to ground a decision by the complainant to terminate his employment and claim constructive dismissal.

The complainant does not fall within the jurisdiction of the Unfair Dismissal Acts as he does not meet the qualifying period and his claim was made under the Industrial Relations Acts.

Nonetheless, I have applied the established tests to his complaint in seeking to reach a conclusion.

They are, in summary that an employer’s behaviour must have been so unreasonable that it represents a repudiation of the contract of employment, entitling the complainant to break the contract of employment and claim constructive dismissal.

In relation to the disputed claim that the respondent said that it did not intend to retain the complainant in employment, the complainant had various options to clarify, or contest such a proposed action, or at least to await confirmation of it and take whatever steps he deemed appropriate at that stage.

An employer contemplating the termination of an employee’s contract does not, per se, repudiate the contract of employment sufficient to ground a case of constructive dismissal, provided the subsequent processing of the termination complies with the procedural and other requirements of employment law.

Accordingly, I find that the complainant has fallen considerably short of making out a sufficient case on this complaint of constructive dismissal.

Regarding whether the respondent had provided the complainant with the relevant statutory statement of his Terms of Employment no evidence was produced that it had been and it seems very probable that the complainant’s reaction on seeing it at the hearing was that of a person seeing it for the first time.

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.

The complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 was withdrawn at the hearing.

The claim for constructive dismissal fails and I dismiss it.

For the failure to provide him with the required Statement under section 7 of the Terms of Employment (Information) Act, 1994 I award him €750.

Dated:   9^th September 2016