ADJ-00000207

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00000207

Parties:

Complaint for Resolution:

Date of Adjudication Hearing: 16/02/2017 and 11/10/16

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

Under Section 8 of the Unfair Dismissals Acts, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Summary of Complainant’s Case:

The following is a summary of the Complainant’s submission;

That he was employed as a business development manager with the respondent from the 29th of April 2013 to the date of his dismissal on the 10th of June 2015. Within a short period of his commencement of employment with the Respondent he found himself subjected to a hostile and intimidating management regime where he was repeatedly shouted at by both directors Mr. M.O’D and Mr. F. in front of others. He was given unreasonable instructions, blames for things outside his control and subjected to baseless threats of disciplinary action.

The following is a list of examples of such behaviour by the Respondent;

1. August/September 2013 - that he was parked outside a hospital with a work college when he received a phone call from Mr. F. Despite advising Mr. F that he was on the speaker phone in the car, and that he was accompanied by a colleague, Mr. F started shouting at him in relation to a request that he had made previously to put two inexpensive items of equipment on an account which the Respondent had set up with a local provider specifically for that project. The Complainant advised Mr. F that, that, Mr. O’D had advised him previously to put anything he required for the project onto the relevant account, and that in any case, the items in question were needed urgently and would be significantly delayed if purchased via the normal purchase order system. Notwithstanding this and notwithstanding also the cost was less than €10, Mr. F responded to him in a loud aggressive tone and told that he was not to “get smart” and that he knew “where this was going”. Mr. F also stated that he was “the owner” of the company so that he should do what he was told. He felt a sense of humiliation at being treated in such a fashion and the situation was compounded by the fact that Mr. F knowingly behaved in this way in front of a colleague.

2.11th/12th December 2013 - that he was asked by M.O’D to attend the premises of a customer Ms. E. in Dublin with a number of other employees. Mr. O’D advised him on the day before the job was to begin that a friend of the customer would be at the premises to let the Complainant and his colleagues in, but gave him no further instructions. When Mr.O’D met with the Complainant the following morning on his way to the job, he asked him if he had called the customer in advance, to which the Complainant advised that he had not as he had not been instructed to do this. Notwithstanding this explanation and the relative triviality of the matter in general terms, M.O’D responded in turn by gesticulating aggressively with his hands and shouting loudly at the Complainant. He stated “what an idiot you are why can’t you do one f* thing right”, together with several other expletives. Once again, the Complainant was subjected to an outburst in front of a number of his colleagues.

3. 12th of May 2014 – that he was onsite supervising a particular project when M.O’D without any advance notice of his arrival. The Complainant politely advised M.O’D to let him or the customer know in advance if he was coming onsite, as the customer had advised the Complainant previously that it was very particular about knowing who was on the premises at any given time. In response, Mr. M.O’D started to speak to the Complainant in an aggressive tone and pointed his finger at him in front of a colleague. He told the Complainant that he was the owner of the company and that he could visit the site whenever he wished, and also told him that he was not to speak to the customer about technical aspects of the job as that was his role. Once again the Complainant felt humiliated at the manner in which M.O’D had spoken to him in front of a colleague and told him that he would prefer if they could continue the conversation at another time in private. This however made Mr. O’D even angrier, and he continued to speak to the Complainant in an aggressive and raised tone of voice, where upon the Complainant told him that he no longer felt comfortable with the situation and he needed to leave. When the Complainant tried to raise this matter again with Mr. O’D the following day and tried to explain his discomfort to him civilly, he just told him once again that he was the boss at which point the Complainant gave up trying to discuss the matter any further.

4. 4th/5th August 2014- the Complainant received a complaint from a loss adjustor engaged by the Respondent to the effect that he had not submitted a damaged report in relation to a particular project in a timely manner. At this time, Mr. M.O’D was on holidays, and the Complainant was extremely busy. He had planned to write the necessary report for the loss adjustor and submit it to him before the 1st August 2014 (it should be noted that the report had already been delayed, as the Complainant had to wait for asbestos reports to be provided to others before he could write it). On the 31st of July 2014, the Complainant received a phone call from Mr. F instructing him to assist regarding an emergency call at a site with a customer. The Complainant responded by advising MR.F that he could not manage any more work that afternoon as he had an urgent report to do for the loss adjustor. He explained that the loss adjustor was under pressure to get this report and he could wait no longer and that the company must not let him down. Not withstanding this, Mr. F insisted that the Complainant attend the emergency at the site. He had no option but to comply. As it transpired, the situation was not an emergency at all and did not require any follow up or further investigation until the following day and the Complainant advised Mr. F that in the circumstances he intended to spend the rest of the afternoon preparing the required report for the loss adjustor. Once again, Mr. F directed the Complainant to finish the work on the customer site that afternoon, with the well flag consequence that he was unable to provide the loss adjustor with the report he required. This prompted the loss adjustor to send the Complainant an e-mail on the 1st of August 2014 cancelling his order for the report and expressing disappointment with the company’s level of service.

When Mr. F became aware of this he called the Complainant into his office where, in front of 3 other members of staff he told him that he had failed the company in relation to this matter, and that because of him, a complaint had been received from the loss adjustor, and that he would be in “big trouble” when Mr. O’ D returned from his holidays as a result of this. When the Complainant protested that the reason for his inability to produce the relevant report in time was due to Mr. F’s instruction to him to attend to another matter and that he did not think it appropriate to be discussing this in front of other members of staff. The Complainant was upset and he advised Mr. F that if he continued the conversation in front of the other people present he would resign. This matter was subsequently discussed at what purported to be a disciplinary meeting with Mr. O’D and Mr. F the following week, following which it was decided not to issue the Complainant with any sanction.

5. 20th February 2015 – during a short period of sick leave the Complainant received a phone call from Mr. F wherein he advised him in his usual aggressive tone that he had once again caused trouble on a particular job which he Mr. F would have to fix. Mr. F. told the Complainant that a job which he had started had not been finished on time. The Complainant responded by advising him that he knew well that he had previously told him to leave the particular job to a number of sub-contractors to complete under his supervision. The Complainant told Mr. F. that he found it very frustrating that when he changed the scope of works on projects to save money, or transferred staff to other sites without letting him know, but still expected him to know everything that was going on the projects assigned to him and found this particularly embarrassing when customers called him in a state of confusion to ask why the company did not appear to be doing what was agreed or why no one turned up to continue the work. Mr. F’s only response to this was; ‘that is what you have a phone for’ and that he should call him periodically to check such matters. In any event, the Complainant was requested to attend a disciplinary meeting on the 23rd of February 2015 with Mr. O’ D and Mr. F. which resulted in no sanction being applied to him and where Mr. O’D stated that perhaps he should be informed henceforward when staff were being transferred or changes were being made to projects which he was co-ordinating.

6. 27th February 2015- the Complainant received a call around lunch time from Mr. F. during which he again complained aggressively that all the Complainant ever did was ‘create a mess’. He was referring here to the situation above. He told the Complainant that during the discussion which took place between the parties on the 23rh February, the Complainant had put him in a bad light. He advised the Complainant that he had three weeks on a project on a customer site to make sure that plumbing repairs had been affected to the water pipes on the premises, so that they could be dried out thoroughly but that this was still not done. The Complainant advised Mr. F that he had in fact requested of him that this be done many times previously, and had reminded him at least once a week over that three week period that it was necessary. Mr. F.’s only response was to shout at the Complainant that his projects were his responsibility and not Mr. F’s, and that he would once again have to have a disciplinary meeting to discuss what he described as the Complainant’s ‘misconduct’. The Complainant was extremely upset after this discussion and subsequently sent an e-mail to Mr. F attaching his original written request to him in connection with the plumbing repairs and confirming the discussions he had with him previously in relation to this, in order to corroborate what he had just said to him on the phone.

As it transpired the disciplinary meeting took place on the 2nd March and once again did not result in any sanction being applied to the Complainant. In fact Mr. O’D advised the Complainant during this meeting that he understood that he was ‘being bullied’ and that he (Mr. O’D) had a bad weekend because of this. Mr. F, however maintained that he had a right to be angry and that all the Complainant did was cause trouble which he constantly needed to fix. Mr. F then apologised if the Complainant felt bad about this. The meeting concluded with Mr. F. and Mr. O’D advising the complainant not to put requests regarding work matters in writing without any further explanation.

The Complainant’s Case:

The Complainant attended his doctor on the 9th March 2015 and was medically certified as unfit for work, initially until the 22nd March and thereafter until his termination of employment on the 10th of June 2015. The Complainant provided a copy of his medical certificate by e-mail dated the 11th March 2015, which also made reference to the issues he was having with the company. At the Respondent’s direction, the Complainant attended its nominated doctor on the 25th March 2015, who confirmed that he was unfit for work and advised the Respondent that he would not be fit to return for somewhere between 1 and 6 months.

Subsequently and having taken advise in the interim, the Complainant formally invoked the bullying and harassment policy in relation to the aforementioned policy relating to Mr. O’ D and Mr. F. He confirmed that he was well enough to participate in any investigation commenced, notwithstanding the clear and unambiguous invocation of the said policy, coupled with the request that the matter be dealt with by an independent consultant in light of the seniority of Mr. O’ D and Mr. F. The Respondent did not reply to the said letter, but chose instead to write to the Complainant directly by letter dated 20th April 2015, which letter essentially ignored the Complainant’s explicit request and simply advised that the Respondent would ‘discuss any issues he may have in line with his contract of employment’ upon his ‘return to work’. The letter also purported to suggest that the Complainant had not previously notified the company that he had ‘any concerns or raised any complaint.’

The Complainant requested by letter dated 15th May that an investigation into his complaint of bullying and harassment should be commenced as soon as possible and that the Complainant was well enough to participate in same. Regrettably, no response whatsoever was received from the Respondent to this letter, such that the Complainant took the reasonable view after a number of weeks that the Respondent had no intention of addressing his very real and material concerns in any meaningful way, or at all, and advised the Respondent that he had no option but to resign from his employment and that he considered himself to have been constructively dismissed.

By letter dated 17th June 2015, the Respondent offered the Complainant the investigation that he had sought two months previously, however, the Complainant had already terminated his employment at this stage and he did not avail of this offer as he felt there was no reality or substance in it.

Section 1 of the Unfair Dismissals Act, 1977 essentially provides that constructive dismissal arises upon ‘the termination by the employee of his contract of employment with his employer, whether prior notice of termination was or was not given to the employer, in circumstances in which, because of the conduct for 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 prior notice of the termination to the employer’.

Having regard to the Complainant’s clear entitlement to have a legitimate and serious complaint investigated by the Respondent both an express matter of contract, and by reference to the most basic requirements of fair procedures generally speaking and having regard to the Respondent’s repeated and deliberate failures to comply with these entitlements while the Complainant was its employee (a state of affairs compounded by the fact that the Complainant complained informally about his treatment many time prior to making a formal complaint, and by the fact that the Respondent was clearly aware of the consequences of its actions on the Complainant’s health as early a the 30th March, 2015 by virtue of the report obtained from its own doctor), it is submitted that the Complainant’s decision to ultimately resign from his employment, on any objective analysis a perfectly reasonable one in the particular circumstance, as required by the above statutory provision.
Consequently it is submitted that the Complainant has clearly established that not only was he dismissed but that he was constructively dismissed particularly when regard is had to ‘the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal’ as provided for at section 6(7) of the unfair Dismissals Act 1977.

Summary of Respondent’s Case:

The following is a summary of the Respondent’s submission;
During the course of 2013 the Complainant became more and more involved in site visits and creating reports and spending less time on business development. By 2014 the majority of his time was dealing with restoration work.
Over the course of 2014, issues started arising and it was necessary for one or other of the two directors of the business Mr. O’ D or Mr. F, to talk to the Complainant about the fact that he was not getting his reports in on time and seemed to be taking too long in completing his duties. Along with the difficulties regarding his administration and completing documentation, conversations were also had relating to his attendance at work, turning up to work out of full uniform, spending a significant amount of time on Skype to members of his family during working hours and constantly disappearing to make or answer calls on his mobile phone. The regularity of these matters were happening was such that it was not acceptable and clearly disrupting the completion of work.
During this time, the Complainant was constantly looking for advances on his salary and looking for pay rises. In December 2014, a meeting was held with the Complainant and the two directors. The purpose of the meeting was to clear the air regarding issues that were constantly coming up and to agree a path forward so the company could continue to develop its business and support its client in an effective manner. This meeting was regarded by both directors as being a positive meeting with a positive outcome. The Complainant appeared to be on board with the company regarding their plans for the future and the Complainant was given a pay rise plus a bonus.
In January 2015, the Complainant approached the company and asked if he could start working from home for a couple of days per week. He spoke to both of the directors and they declined the request. Subsequent to these discussions, it was noticeable that the Complainant’s attitude once again began to deteriorate. He was having disagreements with staff in the office and his work began slipping again. As a consequence further discussions took place between himself and Mr. F regarding the change in his attitude as compared with that shown at the meeting in December 2014.
Once again the money issue came up with the Complainant. Mr. F explained to him that it was not possible to give him an increase over that which he had been given a month earlier. In February 2015, the Complainant put together and ran a course. This course was focussed on performance issues, the running of sites and associated matters. The course was good, however much to the surprise of the directors, it had no sooner finished and the Complainant left work stating he had to take care of some personal business. At the time, although surprised at what appeared to be a quick departure from their premises, no further attention was paid to this until after the Complainant had resigned and this incident came back to their attention. The Company decided to check the GPS system on the Complainant’s vehicle and noted that the vehicle had been parked in Merrion Square which they subsequently noted was the address of his solicitors and there was no company work in the area. On the 2nd of March, a meeting was held with the Complainant as there were a number of issues which the Complainant was involved in, which had resulted in Mr. F having to become involved with the projects himself. During the course of this meeting, the Complainant stated that he was having difficulties handling the workload and also felt that he was not getting cooperation from Mr. F or Mr. O’ D.
He was complaining that both Mr. F and Mr. O’D were saying that he was not doing his job well enough and he stated he was getting stressed as a consequence. During the course of his meeting, he also raised issues relating to communication. He felt he was not being told the full facts about jobs, to which both directors pointed out that it was not in their interests to do this as it would only delay the progress of the job and potentially expose the company to problems down the road if accurate information was not properly conveyed in the first instance.
One of the problems which were identified to the Complainant was that he was constantly trying to do things his own way rather than the way the directors washed it to be done. This had been one of the issues raised the previous year with the Complainant and the directors had thought that he had started to do things the way they were required to be done. Unfortunately, the Complainant is back to doing things his way regardless of the instruction.
Soon after this meeting the Complainant went sick and submitted an e-mail to Mr. O’D in which he indicated he was stressed and that he could not come back into the office. He also went on to state that there were too many times conversations took place regarding communication issues and he appeared to be blaming Mr. F in relation to this. Mr. O’D replied to him indicating that he would follow up on the matters which were identified by him and wished him well hoping that he would get back to work soon.
Subsequent to this, the company received medical certificates from the Complainant confirming he was out with stress, commencing on the 9th March 2015 to expire on the 22nd of March 2015. The company requested him to attend the company doctor on the 25th of March in order to assess his fitness to return to work as clearly the company did not wish him to return and continue to be stressed.
The Complainant attended his own doctor on the 23rd March 2015 and a further medical certificate was received covering him until the 29th March 2015. The company doctor issued a report stating that the Complainant was not fit for work and he expected that he would be out between one month and as much as six months depending on how his health improved. The company received this report and therefore expected that the Complainant would be out for sometime and awaited further clarification regarding his ongoing absence. On the 10th of April 2015 the Respondent received correspondence from the Complainant alleging that he had been bullied and harassed by both directors. The Complainants representative stated in the correspondence that as the two senior executives were involved in this complaint it would not be appropriate for them to be involved in any internal investigation and therefore there would be a requirement to appoint an independent consultant to carry out the investigation. The Respondent was also advised that the Complainant was still unwell to attend work but confirmed that he was fit enough to participate in the bullying and harassment investigation.
Mr. O’D replied on behalf of the company on the 20th April 2015 and confirmed his surprise at receiving this correspondence as they had not been previously advised by the Complainant of any concerns of this nature and that the directors would be more than willing to meet with him on his return to work to try to resolve these issues. The Company received a letter dated the 15th May 2015 from the Complainant’s representative asserting that the Complainant had raised his concerns regarding the way he was treated by both directors over the previous 12 months. This was not the understanding of either of the directors and, certainly referring back to the meeting in December 2014, it was their impression that this was a very positive meeting. The Directors also maintain that at no time there was any specific issue raised regarding their behaviour by the Complainant. Around this time, it came to the company’s attention that the Complainant had been seen working in another business which of course was not consistent with the assertion by the Complainant’s representative that he was not fit to return to work. Having received the correspondence of the 15th May 2015 from the Complaints representative the company needed to consider what action they should take and also ascertain whether the complainant was still absent from work due to ill health or was he in fact working.
The Respondent retained an investigator to visit the premises where they believe the Complainant was working. The investigator visited the premises on the 28th of May 2015 and the Complainant was present at this premises. The investigator dealt directly with the Complainant and it became clear from discussions with him that he was actively and fully involved in the business. The Complainant also indicated to the investigator that he was share holder in the business. Subsequent to this visit quotations were sought and received from the Complainant for work to be done all of which had his signature and or reference to his name and phone number for further enquiries. On the 10th June 2015, the Respondent received another letter form the Complainant’s representative stating that since the directors had not responded to his letter of 15th May 2015, that the Complainant had resigned from the company with effect from the 10th of June 2015.
Having ascertained the facts regarding the Complainants ability to work and receiving a letter from the Complainant’s letter dated 10th of June from the Complainant’s representative, the Respondents wrote to the Complainant confirming that the directors are happy to involve an independent investigator in this matter and requested a formal statement to be submitted in relation his allegations as he was instituting a formal investigation. This would allow the Directors against whom the allegations were being made to formally reply to these statements. Once the statements were exchanged, the company would appoint the investigator to commence the investigation. In addition the company also advised that no medical certificates had been received to cover the period of absence from the 29th of March 2015 and requested medical certificates to cover this period. The Complainant’s representative wrote to the Respondent on the 25th of June 2015 restating that the Complainant felt he had no alternative but to resign his position from the 10th June 2015.
The Respondent was willing to conduct an investigation using an independent investigator and since the Complainant declined the offer to participate in the investigation the directors decided to accept the resignation of the Complainant.

Company Position:

In a constructive dismissal complaint, there is an absolute obligation on the Compliant to show the following;
In the first instance the Complainant must be able to show that he had a grievance sufficiently serious enough and was taken under the grievance procedure and despite this was not reasonably resoled by the employer. As a consequence of the failure on the part of the employer to reasonably address the grievance, the employee then believes he had no alternative but to resign from his position in the company. Clearly it is well established that the obligation is upon the employee, in these circumstances, to make the employer aware that the grievance was sufficiently serious and unless it was resolved he had no choice but to resign.
The second circumstance relates to where the employers conduct, which can be of a singular nature is so serious that it clearly shows that the employee could not be reasonably expected to continue to work for that employer any more. Naturally, such an act on the part of an employer must be so serious as to justify the employee believing that the employer’s conduct has gone to the root of the contract, therefore continued employment was intolerable.
Despite the assertions of the Complainant that the raised grievances regarding the behaviour of the directors towards him, there is no evidence to show that these grievances were ever raised. The directors would not dispute that there were issues between them during the course of 2014; however, these issues arose as a consequence of the Complainants behaviour in the workplace. Neither can the directors accept that they behaved in any particular manner that could reasonably be seen as going to the root of the contract.
Whilst the directors were surprised that the Complainant alleged he was being bullied and harassed, they had no difficulty in trying to address this matter. The Complainant’s solicitor was demanding that the directors initiate an investigation with someone with whom they would agree. The company on the other hand was more concerned that the Complainant would get better and when he was fit enough to come back to work to meet with him with a view to identify exactly what the problems were and to move forward. Clearly this was not something that the Complainant wished to do and this was outlined in his reply on the 15th of May 2015. The directors did not immediately reply to this correspondence as they became aware that the complainant was working elsewhere and needed to establish whether this was correct and also needed to seek professional advice just as the Complainant did as to how to handle this matter going forward.
Before they were in a position to confront the Complainant regarding the allegation of him working elsewhere while he was out sick, they needed to establish the facts and thus arranged for an investigator to visit the workplace where he was working. It is clear that the Complainant was actively involved in this business for sometime. It is also clear that the Complainant has an interest in this business. It is also clear that the Complainant was fit enough to attend work elsewhere even though he constantly maintained through his solicitors that he was unable to attend his normal workplace.
The directors would maintain that the reason the Complainant decided to resign was he was unable to provide medical certificates to support his contention that he had been sick up to the date of the letter of the 10th June 2015. The directors are of the view that the Complainant was not in a position to produce evidence of bullying and harassment nor did he raise these grievances in the past with the company and he decided that it was an appropriate time to leave his employment and focus on the business that he had been involved in over the previous months. It is the view of the directors that the Complainant had no intention whatsoever of returning to work.
The company would contend that the Complainant has not provided any evidence to show that he made a reasonable attempt to pursue his grievance through the grievance procedures. The Complainant has not shown any grounds that the Respondent’s conduct was so serious that it justified immediate resignation. The Complainant had been actively involved in trying to develop alternative business and had no intention of returning to his workplace.

Supplemental Submission Submitted by Complainant’s Representative:

The following is a summary of the Complainant’s supplementary submission;
The Respondent’s representative alleged that the Complainant was working for another business named CCS while in the employment of the Respondent. This is denied by the Complainant.
The true position is that CCS was a business owned and run by a friend- Mr. D. In light of his friendship with Mr. D the Complainant helped him from time to time in a modest way, outside normal working hours, and purely on a voluntary basis in respect of which he was not paid by CCS. The Complainant made no attempt to hide this from the Respondent and in fact, expressly advised Mr. F. on his involvement with CCS in or around June 2014, making it clear to him that this would not impact upon his obligations to the Respondent. Mr. F expressed no difficulty with this.
While absent from work on grounds of stress and anxiety between March and June 2015, the Complainant continued to provide voluntary assistance from time to time to Mr. K, and in no way was this incompatible with his illness.
In or around the end of May 2015, the Complainant was advised that a potential ‘customer’ had been calling CCS looking to speak to him about a job. Mr. K. and his colleague Mr. M.L. advised the ‘customer’ that the Complainant did not work for CCS. As it transpired, the job involved the modification of the air conditioning system of certain vehicles owned by the ‘customer’ in order to make them suitable for the transport of dogs, in circumstances where the ‘customer’ believed the Complainant to have a particular knowledge of this in light of his involvement with dog-rescue of which the ‘customer’ was aware. The ‘customer’ appears to have been in fact the investigator referred to in the Respondent’s submission. In any event, since the Complainant was in fact a member of dog rescue and understood the particular requirements sought by the ‘customer’, and since Mr. K. needed the business, he asked the Complainant to deal with the matter as a favour. The Complainant agreed to this, and he met with the ‘customer’ on the 28th of May, 2015 and took his order. He made it clear to him however, that he was not actually employed by CCS, and that he was only helping Mr. K who was his friend, so that the ‘customer’ should get Mr. K. to provide him with a receipt for his deposit. The ‘customer’ stated, ‘that he would prefer to deal with the Complainant since the work involved the welfare of dogs’ and the Complainant agreed to continue to deal with the matter on that basis and supplied an estimate to him the following day. The Complainant did not advise the ‘customer’ that he was a shareholder in the business. The Complainant received no payment from CCS for the assistance provided.
This was the extent of the Complainant’s involvement with CCS and in no way could it be said that he was working for CCS as alleged by the Respondent. Neither is it the case that the real reason that the Complainant left the Respondent’s employment was in order to focus on the business of CCS. The true position is that the Complainant went to work for a different company shortly after leaving the Respondent’s employment on a part-time basis. The part-time voluntary assistance that he gave to CCS ceased around October 2015, following the untimely death of his good friend Mr. K. There is no substance to the allegation that the Complainant had been working in other employment while he was working for the Respondent.

Hearing held on 16/02/17

This hearing was held in order to take evidence from two witnesses.
Witness 1 – Mr. T.G. (Investigator) for the Respondent
Mr. T.G. stated that he was retained by the Respondent to investigate whether or not the Complainant was working for CCS. He visited the premises by prior arrangement with the Complainant on the 28th of May 2015. The Complainant met him there and he dealt directly with him in relation to a quotation that he sought. The Complainant indicated to him that he was a shareholder in the business. He provided him with a quotation to provide estimates to supply and fit complete A/C systems to 4 vans. The Complainant signed off on the quotation with his telephone number for further enquiries. It was his understanding that the Complainant was employed by CCS and was a shareholder in the business.
Witness 2 – Mr M.L. for the Complainant
Mr. M.L. sated that the Complainant was never an employee or a co-worker of CCS. That he (M.L.) had an investment in CCS. That Mr. K. was a friend of the Complainant and periodically he helped his friend. That he never met the ‘customer’ but he was aware of a person that made several phone calls looking for the Complainant. This person mentioned that his business was to do with dogs and he asked for the Complainant’s assistance.

Findings and Conclusions:

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

In a constructive dismissal complaint, the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The Complainant needs to demonstrate that they have no option but to resign.

I note in the EAT John Travers –v- MBNA Ireland Ltd. [UD720/2006] it stated;

‘We find that the Claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Claimant’s case…In constructive dismissal cases, it is incumbent for the Claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.’

Based on both oral and written submissions, I find that this complaint is not well-founded and therefore fails. The Complainant failed to follow the agreed procedures for making a formal complaint of bullying and harassment against the Respondent. 

Dated:   05 April 2017

Workplace Relations Commission Adjudication Officer: John Walsh