ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002834

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

Dates of Adjudication Hearing: 03/06/16 and 06/01/2017

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 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 is a utility arborist. His job was to remove trees close to ESB power lines.

He stared working for the Respondent on the 18th of July 2011.

He was never provided with payslips. There was a bonus scheme in place which was dependent on productivity. The bonus was paid on a quarterly basis. Historically there was no difficulty in the bonus being paid.

The Complainant stated that he had never received any poor feedback from the Respondent and never received a warning of any type.

In January 2015, the Complainant had considered setting up his own company to work as a competitor to the Respondent; however he decided not to proceed with that venture.

On the 4^th of November 2015, the Complainant was working on a job cutting trees and made contact with an ESB line. This was a serious incident and caused a power outage.   The company protocol was followed and the Complainant did everything he was required to do.

Relations between the Complainant and the Respondent were strained following this incident. The Complainant gave evidence that the Respondent stated on a number of occasions that if he wasn’t happy “there’s the gate and he could go”.

The Complainant was certified unfit for work on the 23^rd of December 2015. He was also certified unfit for work in January 2016.

The Complainant’s case was that the Respondent made his working life impossible. The Respondent constantly questioned his mentality. His behaviour towards him was degrading and he made him feel unwelcome. The Complainant stated he did try to raise issues with the Respondent and he wanted to know where he stood in the company.

The Complainant decided in February 2016 he could no longer go back to work. He told the Respondent on the phone that he wasn’t going back.

Despite being in receipt of a disability social welfare payment, the Complainant said he was actively looking for work. He had completed a Fetac level 5 course in healthcare. This course commenced on the 1^st of February 2016.    

The date of resignation was stated on the complaint form as the 15^th of February 2016.

Respondent’s Submission and Presentation:

The Respondent’s case is that following the incident on the 4^th November 2015, the Complainant’s wages and bonus were still the same even though he had less responsibility and was effectively “stood down” in his role.

The Respondent received a text before Christmas 2015 stating the Complainant was not feeling well. When he rang the Complainant, he said his doctor didn’t know what was wrong with him.

The Complainant and Respondent met over the Christmas break and had a pleasant chat. The Complainant told him he wasn’t feeling well. He said they had no ill feeling between them. He expected the Complainant to return to work in the New Year.

In January 2016, the Respondent received a further sick certificate for the Complainant.

On the 18^th of January 2016 the Respondent texted the Complainant to enquire as to how he was feeling.

He followed up on the 2^nd of February 2016 with a further text enquiring if he was coming back to work. The Complainant responded with a text on the 8^th of February 2016 stating

“Sorry I missed your call and text. I am going to Clare today to meet a lady and hopefully get full clarity but to be honest it looks like I will be taking a break from cutting timber for the foreseeable future. I will ring you this evening”.

The Respondent sent a text to the Complainant asking him to drop back ‘his gear’ on the 20^th February 2016.

A Complainant replied on the 20^th of February 2016

“Hello, I am away from the weekend. I will drop it back Monday or I can leave the keys in the pole saw box for you if you want to collect it. Can I get my P45 please and I cut 906 units not including the 38 kV lines last year ……   Would it be possible to get the remaining bonuses I am owed”.

The Respondent followed up with a phone call to the Complainant. During the short phone call, the Complainant said that he wasn’t going back that he had something else “sussed out”. The Respondent said he wished him all the best. He told him he would give him a reference, but he was never asked for it. The Respondent gave evidence that the complainant said he was burnt out. The Complainant stated that he had started a new career and that he was not going back to the tree cutting business.

Decision:

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 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the Payment of Wages complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

There is a divergence of evidence between the parties as to what occurred after the events of the 4^th of November 2015. There are no witnesses to the interaction between the parties and only the Complainant and the Managing director of the Respondent gave evidence at the first day of the hearing.

I have considered the evidence both submitted in writing and verbally at the hearings.

Regarding claim CA-00003918-001

I accept that an incident took place on the 4^th of November 2015 and resulted in a stressful situation for both the Complainant and the Respondent.

The case law has held there is a high burden of proof on an employee to demonstrate that he or she acted reasonably and has exhausted all internal procedures, formal or otherwise to resolve his or her grievance(s).

If the circumstances are sufficiently serious, the failure to invoke the grievance procedure may not prove fatal.

For a claim of constructive dismissal to be successful, the employee needs to demonstrate that the employers conduct was so unreasonable as to make the continuation of employment intolerable.

The text messages provided by the Respondent do not corroborate the Complainant’s evidence in this regard.

The Complainant was on sick leave at the time of his resignation and he did not give an adequate opportunity to address what the Complainant states was the reason he resigned.

There is an equal obligation on the employee to act reasonably in terminating his contract of employment. Resignation must not be his first option.

There also appeared to be no connection between the conduct complained of and the employee’s resignation. The Complainant had started a part time healthcare course with the local Education and Training Board two nights a week before he resigned. I accept the Respondent’s evidence that the Complainant said to him that he was giving up cutting trees and that he had started a new career.

Therefore, I find the Complainant did not meet the requisite threshold to succeed in his claim for constructive dismissal.

Regarding Claim CA00003918/002

There was a dispute between the Complainant and Respondent as to the amount of bonus due to him.

At the hearing the Respondent provided copies of payslips he asserted were given to the Complainant setting out a breakdown of how the bonus was calculated.

A block list was provided which correlated with cheque numbers and dates and a description of what the block work was.

The bonus calculation was prepared by the Respondent’s accountant.

It was difficult for me to understand how the bonus was calculated without oral evidence being provided in this regard.

The Respondent was able to provide copies of the cashed cheques provided in the past and cheque stubs with supporting documentation as to ESB lines.

I am satisfied that the bonus calculation resulting in a net payment of €1,188.66 has been calculated by the Respondent correctly and I order that said payment be made again to the Complainant to discharge this complaint. This is a net payment as it has been calculated in accordance with the final payslip dated the 12^th of December 2015 which was lodged with the Respondent’s submission.

Dated:   25^th April 2017