ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002973

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

Date of Adjudication Hearing: 18/01/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, 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).

1:        Complainant’s Submission and Presentation:

2:        Summary of Respondent’s Submission and Presentation:

The Complainant has been an employee of Respondent A since April 2008. There was a major issue as the claim is served against Respondent B who was not the employer of the Complainant.

In September 2014 the Complainant raised issues regarding his relationship with his Supervisor Mr.X. The Supply Chain Manager Ms.Y investigated these complaints in September 2014 and believed that the issue had been resolved.

In August 2015 The Complainant went on Stress related sick leave. Ms. Y again investigated and informed the Complainant (5th October2015) that the Company would not take the investigation further. Ms.Y had taken an informal as opposed to a formal approach to the complaints.

Correspondence from SIPTU and the Complainant followed and the Respondent requested the Complainant and SIPTU to now take the formal grievance procedures. This was by means of contacting Mr.Z. the HR Manager. Letter of the 23^rd Of October 2015. An issue arose with SIPTU regarding the nature of the Investigation with SIPTU proposing that an outside Independent investigator be appointed.

Further exchanges of correspondence with SIPTU, along the above lines, followed until January 2016.

On the 25^th January 206 the Complainant resigned by e mail.

The HR Manager Mr.Z replied and asked the Complainant to reconsider his decision and avail of proper procedures. This was also communicated to SIPTU.

The Complainant replied on the 5^th February 206 confirming his decision to resign.

The Respondents position is that the Complainant, despite repeated request, failed to avail of the internal Company procedures and his resignation was voluntary.

3:        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.

4:        Issues for Decision:

1. Is the correct Respondent on the claim form?

2. Allowing for Question 1 were proper procedures followed by the parties – (S.I 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures )

3. Does the claim of Constructive Dismissal meet the normal tests /burden of proof required in Constructive Dismissal cases?

5:        Legislation involved and requirements of legislation:

Unfair Dismissals Act 1977 and S.I. No 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures

6:        Decision:

Taking the questions at 4 above

6:1         The Law and the Burden of Proof.

It is well stablished law that in a Constructive Dismissal case the employee is required to effectively utilise, unless there are major and exceptional mitigating reasons, all available internal Grievance procedures prior to a resignation.

In Harrold v St Michael’s House, [2008] (E.L.R. 1 at 41) the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

In the case in hand this is a critical issue.

6:2 The Correct Respondent.

The Complainant was employed by Respondent A not Respondent B as appeared on the claim form.

Technically on this ground the claim could be dismissed. However in mitigation to the Complainant there was considerable cross over between the two Respondents and the initial contract of employment has both Companies listed on the headed notepaper. The HR Manager Mr.Z appeared to be an employee of Respondent B but provided services to Respondent A.

Taking the degree of cross over between the Respondents I allowed the claim to continue.

6:3          Were proper procedures followed by the Parties?

Reading the correspondence and hearing the oral evidence from the parties I could find no fundamental flaw in the procedures being followed by the Respondent. An informal investigation had been followed by the Supply Chain manager in September 2015 and again in August / September 2015. The Respondent had invited the Complainant to avail of the Formal Procedures in September/October 2015. This offer was again formally repeated by the HR. Manager in his letter of the 29^th January 2016. The HR Manager asked the Complainant to reconsider his resignation.

An issue may have arisen from the SIPTU demand to have an outside Investigator appointed or have the matter sent to a Rights Commissioner. However this was a matter to be resolved by the parties in direct discussions once the formal investigation/grievance process was underway. It did not justify a resignation.

The Complainant was at all times fully represented by SIPTU.

The Respondent had all proper written employment procedures in place.

Taking all the evidence presented, both oral and written, I came to the conclusion that the Complainant resigned voluntarily on the 25^th January and did not fully utilise all the internal procedures.

6:4          Constructive Dismissal Tests

There are two tests involved here – (1) Breach of Contract and (2) Reasonableness of Parties Behaviour.

Taking No 1 there was no evidence of any fundamental breach of contract such as to warrant a resignation.      

As regards No 2 Reasonableness of Parties; there was no evidence that the Respondent had been unreasonable in any of his dealings with the Complainant.

The Supply Chain Manager Ms. Y had informally investigated in September 2014 and again in 2015. Reasonable steps were taken following the 2014 investigation and she had kept the matter under observation during the year to August 2015.

The Complainant was well aware, as was his Union that the Company was seeking to go down the Formal route in late 2015.

His resignation was voluntary and well considered both on the 25^th January 2016 and his subsequent confirmation on the 5^th February 2016.

Accordingly I had to find that the Complaint does not satisfy the two tests above to justify a Constructive Dismissal.

7:        Final Conclusion

Having reviewed all the evidence and taking the three questions raised and discussed at Section 6 of this Adjudication above I find that the claim for Constructive Dismissal is not well founded and fails.

Dated:   26^th April 2016