ADJ-00003554

ADJUDICATION OFFICER DECISION 

Adjudication Reference: ADJ-00003554

Parties: 

Complaint for Resolution:

Date of Adjudication Hearing: 13/12/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 8 of the Unfair Dismissals Act 1977-2015 and 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:

On 8 June 2016, the Complainant lodged a claim with the Workplace Relations Commission that he had been constructively dismissed on 11 February, 2016. 

Summary of Complainant’s Case:

The complainant had commenced work for the respondent on 19 November 1983.He worked in a series of roles from Deckhand, Engineer, and Skipper .He was not provided with a contract of employment.

The complainants working hours varied .He was notified on any given week of what was expected of him hours wise and it was necessary for him to be available on an ongoing basis. His main role centred on completing the ferry runs to an Island .He also skippered a “Tug Boat”.

A Colleague of the complainants, Mr another full time skipper had been on sick leave from September/October 2015, the other remaining qualified skipper had been subcontracted .The complainant wanted certainty in his hours of work, he understood that this was to unfold in 2014, but this did not happen. The complainant’s hours increased to excessive level between July and December 2015 .The complainant submitted records of weekly time logs for this period: These indicated a range of hours from 34 hrs per week on week 27 to 75 hrs per week in week 46.

The complainant was also dealing with his daughters deteriorating health at that time and she passed away in September 2015.

On 18 December, 2015, the complainant sought out a Director of the company, Mr A and addressed him on his ongoing difficulties in relation to his hours of work and sought to inform him that he couldn’t continue on the excessive hours.

The complainant submitted that he received an unfavourable response from Mr A, who refused to address his concerns and stated:

“I am sick of you and your son and I am sick of your ***** family “The complainant understood that he was told that if he did not like the conditions, he could leave.

The complainant was shocked and angered by the response and he considered himself dismissed as he submitted that Mr A sought his letter of resignation by the following morning. Mr LM2 contacted the complainant some days later seeking to try and resolve the issues raised by the complainant .He was requested to work his notice period .He agreed to work over the Christmas period.

He hand delivered a letter of grievance on 4 January to the home of Mr LM2.Counsel for the complainant contended that the complainant was extremely stressed by the detrimental effect of the additional hours and preceded on certified sick leave on 7 January, 2016.

Documentation exchanged between the parties suggested that the complainant on the annualised hours topic was confusing to the complainant as he understood that Mr A had told him that if he did not want to continue working under the current arrangement “ he should consider resigning “

The complainant resigned his position via his Solicitor on February 25, 2016.

Counsel for the complainant detailed an average of a 60.37 hour week in the four month period prior to the complainant’s cessation of employment. The complainant relied on an EAT case of Dempsey V Mediaservice ( Irl) UD 541/2000,and argue that rostering a telephonist for 15 hour shifts without a break was found to be a breach of the Organisation of Working Time Act ,1997 in addition to being a legitimate basis for claiming constructive dismissal .

The complainant contended that he was trapped by the excessive hours sought by the respondent without addressing his central concerns regarding a reduction. He contended that nobody managed his grievance and he had no choice outside his leaving.

Statement and evidence of the Complainant:

The complainant submitted a written statement to the WRC on 8 June 2016 .The complainant gave a context to the topic of “ annualised hours” by stating that he expected to be placed on this fixed arrangement in 2014 as it had been introduced for some workers in 2001/2002. Once he progressed with annualised hours, he received the same money irrespective of the quantum of hours worked.

He recalled the meeting with Mr an on December 18, he stated that he was warned by Mr LM2 not to go in, and he felt that he was annoying them. He stated that “ I will never forget it “ in relation to the content of the meeting .He understood that he was asked in a “ split second “for his resignation and informed that the “ gate” was there if he was not happy .

He detailed that he had not received confirmation that his pattern of work had changed prior to his resignation .He was troubled that the respondent interpreted his actions as “walking out of my own free will “He contended that he worked on 11 days between December 21 and up to January 7, 2016.He submitted that nobody from the respondent company had addressed him on a disciplinary manner and this upset him to be threatened in this way.

He took legal advice which prompted the proposal for the appointment of a mediator which was refused leaving him no choice outside resignation. He was denied a formal investigation or any hearing on the issues at the heart of his grievance.

During cross examination, the complainant denied that he had exaggerated his record of hours worked .He denied that the four month average amounted to weeks 37 -52 of 2015: 32.5hrs. He disputed his current earnings as stated by the respondent.

The complainant rejected the respondent contention that his issues were addressed by the company.

In response to my questions , the complainant confirmed that he disagreed with Occupational Health assessment .He was never formally notified of a return to casual hours and he believed that he never went back on casualised hours at the company .He was not aware of a company resignation procedure .

In closing , Counsel for the complainant emphasised the relevance of the time sheets in the case .The complainant worked excessive hours which caused him to addressed Mr A on the matter on December 18.He was deeply affected in the aftermath of this meeting .The opportunities to address the hours factor was missed on December 2015 and during January2016.The complainant had complete faith in the company , he enjoyed his job and did not want to turn his back on the company he had worked for over a long period .

He submitted that the company had failed to engage in a timely manner and the repeated proposal of an Independent Mediator was wrongly rejected by the company. 

Summary of Respondent’s Case:

The respondent disputed that the complainant’s resignation amounted to Constructive Dismissal. The complainant worked as a launch skipper and Tug Boat deckhand from January 1987.He was made redundant in 2007 .The complainant was re-employed on a casual part-time basis from February 2008.The Respondent took over the business on January 1, 2016 and the complainants employment transferred under the European Commission (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The complainant requested to be placed on annualised hours in January 2014.Set annual salary followed and the complainant was paid the same amount each month. The amount of hours varied but did not exceed the threshold set down by the Organisation of Working Time Act 1997. The complainant received an increase in salary to €34,000 per annum in January 2015 and he commenced training as a Tug Boat Skipper. During summer, 2015, the complainant raised a concern regarding his increase in working hours without a noticeable increase in pay. This was explained by the respondent as a seasonal variation, where the excess hours in summer would off set against the winter seasonal reductions.

The Respondent supported the complainant when his daughter’s health deteriorated in September, 2015 by way of paid leave following her passing and assistance with associate costs. The respondent gave the complainant “as much paid time off as he needed” and the company was surprised that the complainant returned to work a week post his daughters death.

On 18 December, 2015, the complainant approached Mr A ( Company Director) seeking to revert back to casualised hours .Mr A informed him that he was needed for the annualised hours . A disagreement arose and the complainant resigned.

The complainant was requested to present to work on 20 and 21 December and refused due to his resignation .The question of notice was discussed and the complainant disputed that 6 weeks notice was necessary, and confirmed that he was only willing to work two weeks notice. The complainant subsequently attended for work on December 21.

On December 29, 2015, Mr LM2 called the complainant to discuss his future, seeking him to extend his notice period to address any issues .The complainant was also offered to revert to casual basis, but refused.

The complainant attended for work on January 1, 2016 and hand delivered a letter addressed to Mr A to the home of Mr LM2.

This letter was dated 22 December and re- affirmed the complainants continued employment status and his grievance about his working hours.

The complainant commenced sick leave on 7 January 2016, On the same day, Mr LM2 rang his home and learned from the complainants mother that he was stressed and still grieving his daughter .The respondent received correspondence from the Complainants Solicitor the same day, stating that the complainant was stressed and was under the impression that he was being forced out of employment. The letter sought contact with the Human Resource Department.

On January 29, 2016, the Respondent set out a detailed progress report on the case for both the complainant and his Solicitor.

1 Casual hour had commenced from January 1, 2016, which did not attract paid sick pay.

2 There was insufficient detail to investigate the grievance raised on January 4 and Company policy did not provide for pursuance of the grievance procedure while parties were on sick leave.

The respondent referred the complainant for an Occupational Health Assessment on 4 February.

The Respondent received a request from the Complainants Solicitor for the appointment of an independent Mediator to try and resolve the difficulties.

The Group Hr Manager (Mr GHR) wrote to the complainants Solicitor refuting the allegations submitted and refusing the suggestion of Mediation. Instead, Mr GHR informed the Complainants’ representative that the Complainant had been medically fit to engage in the grievance procedure.

The letter assured that the complainant’s issues would be thoroughly investigated and enclosed a copy of the Grievance Procedure .The complainant was requested to set out details of

1 The issues he encountered in relation to his hours of work and working conditions.

An offer of the provision of a Counsellor paid by the company was made to the complainant.

The respondent received confirmation on February 25, 2016 that the complainant tendered his resignation, alleging that he did not believe that Mr GHR would be impartial to determine his grievance. He considered himself “constructively dismissed “.

The respondent requested that the complainant reconsider this resignation on March 2, offering an alternative lead to address the grievance .On March 23, the complainant insisted that he would only deal with an independent Mediator and requested his P45, which was forwarded on 5 April, 2016.

The respondent submitted the overarching principles contained in Daniel O Gorman V Glen Tyre Co Ltd UD 2314/2010 applied to the circumstances of the case:

The respondent submitted that the EAT held:

It is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and that the employer be given an opportunity to resolve the issues.

The respondent also relied on Berber V Dunnes Stores [2009] 20 ELR 61

The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order top determine if it is such that the employee cannot be expected to put up with it “

The respondent submitted that the company had not refused external mediation but had refused it prior to the invocation of their internal Grievance procedures. The respondent contended that the complainant had behaved unreasonably in relation to the grievance procedure .The respondent had agreed that the complainant could revert to casualised hours in December 2015.

The respondent submitted that the complainant had not suffered any loss as it was their understanding that he had been working on cars since the date of termination. He had not submitted evidence of mitigation.

Evidence of Mr GHR, Group Hr Manager.

Mr GHR clarified the real time worked on Ferry duty and stated that the complainant was not required to remain at the location on stand-by .He understood that the complainant had refused work

In response to questions from the complainants counsel on the reduction in tabulated hours, Mr GHR reaffirmed the reduction tabled by the respondent.

Evidence of Mr LM2

Mr LM 2 was the complainants manager and had the initial conversation where he asked him to reconsider his decision of leaving .He knew that he was stressed and was grieving and acknowledged that he would be a loss to the company . He asked him to reconsider his decision twice but believed that he would not do so.

During cross examination, he confirmed that the complainant was seeking casual hours. The company had 500 employees, 150 of whom were based on the current base .He was not aware of a resignation form.

He understood that the respondent wanted to help the complainant .His work was not affected.

In closing, Solicitor for the respondent submitted that the company had not received an explanation from the complainant on his lack of engagement on the utilisation of the company grievance procedure .Three of the respondent managers had sought to get the complainant to reconsider his decision informally and in writing. The company had explained through the Hr Manager that the Grievance Procedure was hampered by the complainant’s sick leave and the completion of an Occupational Health assessment.

The respondent disputed the total hours alleged to have been worked by the complainant. He was offered counselling.

Finally, the respondent contended that the employer “should have been told” of the complainants issues in advance of leaving. The respondent submitted that he had not discharged the burden of proof for Constructive Dismissal. 

Findings and Conclusions:

Constructive dismissal is not specifically mentioned in the Unfair Dismissal Legislation. The definition relied on can, however, be found in Section 1 of the Act.

1(b) the termination of the contract of employment with his employer, whether prior notice of the termination was or was not given to the employer in circumstances in which, because of the conduct of 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 notice of the termination to the employer.

The respondent drew an analogy to the case of wrongful dismissal at Supreme Court in Berber V Dunnes Stores [2009] IESC 10

The appropriate test for was set in this case as:

1 The test is objective

2 The test requires that both the conduct of the employer and employee be looked at.

3 The conduct of the parties as a whole and the cumulative effect must be looked at.

4 The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged constructively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

The background to this case was set against an aftermath of a personal bereavement for the complainant and a preparation for a Transfer of Undertakings in January , 2016 for the respondent . Both these respective episodes were reflected by the respective parties as periods of storm and stress.

The case is not assisted by the lack of foundation documents such a contract of employment or a reference document on the protocol for resignation .I realise that the matter of the contract was addressed in the respondent letter of 9 February 2016,when terms of employment were to be sent as follow up to the letter .

I would have expected that these issues would have reasonably arisen and been addressed in the context of the due diligence and subsequent preparation for TUPE before year end 2015.

While there was a clear dispute between the parties on the actual total of hours worked by the complainant in the final four months of 2015 ,I must stress that this is a claim for constructive dismissal and not one under the Organisation of Working Time Act .I have considered this dispute and find a discrepancy in the hours worked which was not notified to the complainant in such a way as to prompt a debate or negotiation aimed at resolution in real time .

However , in terms of my inquiry into the facts of the case ,I found the complaiiannat evidence of December 18 to be stark . I would have liked to hear from Mr A , but he was not available for the hearing . Without hearing from Mr A, I have to accept that the complainant was deeply affected by this discussion that was not remedied in the weeks that followed. I accept that, while the local managers sought to pour oil over troubled waters , and genuinely tried to fix things, it seemed to me that an unbridgeable chasm had developed followed this meeting ,where the complainant seriously disconnected from the company . It is important for me to state that I was struck by the evidence given by the complainant of his distress on Christmas night, one week post that meeting . This was a stark testimony and clearly not known by the respondent , who had previously expressed a surprise at how quickly the complainant had returned to work post the loss of his daughter .

It is clear to me that the personal bereavement was a live issue for the complainant in December 2015 . This was compounded by the unresolved difficulty in his seeking to revert to casual hours .I accept that he went to Mr A for help and was disturbed when this was rebutted and rejected in the manner stated .

I appreciate that there were some mixed messages on whether the complainant was staying or going at the company before the first week of Janaury 2016, However, the complainant made an unequivocal request for the formal grievance procedure on 4^th January ,2016.

“ I confirm that I have not resigned and that I remain an employee of X ltd. I do wish the problems I have been raising to be dealt with properly “

This should have prompted a fresh focus on the case by both parties . Unfortunately , the complaiannts sick leave took over and he did not return to work before his resignation on February 25, 2016. I found the period of January 7 – February 25 warranted a careful analysis of both parties actions during that period .

The complainant was communicating at that stage via his Solicitor and the letter of January 29 ,2016 written by Mr GHR set out a partisan analysis of the “ state of play in the case “ from the perspective of the new owners .

1 The company had received notification of resignation from the complainant on 17 December 2015

2 The complainant had been offered casualised hours and a four week extension in his employment

3 Sick pay was denied

4 Sick leave prevented an examination of the complainants grievance in advance of an Occupational Health Assessment . This report was completed on 4 February and recommended a return to work in three weeks .

5 An offer to retract the notice .

There were no notes of any meetings or discussions between the parties submitted .

I could not establish from the respondent grievance procedure ,that an Occupational Health clearance was identified as a necessary precursor to handling a grievance .In addition , I found a tardiness in managing the grievance . I appreciate that the company was in the middle of a transfer and the complainant was not known by the respondent HQ, however , I contend that it would have been reasonable to act on the grievance as it arose on 4 January and apply the stated time limits to the resolution .

There are times in all employment relationships where an impasse is reached and it can often follow that the parties don’t want to be the first to “ blink” . I found that this happened in the instant case in relation to the proposal of the appointment of a Mediator .

I found sufficient scope contained in the principles underpinning the grievance procedure to allow for that to happen.

“ due to the nature of certain grievances , it may be necessary to vary the means by which a resolution can be achieved at any stage of the grievance procedure , should this be necessary , alternative arrangements to those mentioned below must be discussed and agreed in advance”

It may have been the case that the respondent was reticient in considering some “ knights move “ thinking in relation to this dispute on progress .However, I find that the company reliance on receiving an expanded grievance prior to actioning the first step of the process taken with the outright refusal of an appointment of a mediator to be fatal to any hope of recovery in this case . It cannot be overlooked that the complainant described significant discord with a company Director, wherein his employment was perceived as being threatened . This was not a peer and as such may have benefitted from a more imaginative resolution .

It is not lost on me that all parties accept as undisputed the compaliannt was actively grieving for his daughter in the time of this case .I understand the respondent submission in part, in relation to their disquiet that they were not on sufficient notice of the enormity of the complainants distress. It was accepted that the company were hugely supportive at the time of the loss. However ,this was overtaken by the complainants reports of December 17/18

I find that the complainant did not action his unease regarding his hours at an early stage so as toallow for the grievance procedure to address a resolution . Not withstanding this finding , I find that the complainant was faced with a “ last straw “ situation when his representatives request for an appointment of a Mediator was challenged and unmet in February 2016. The complainant had suffered a loss of a daughter, had received an immediate threat to his job ,had been deemed unwell .The tools proposed by the respondent

Cut off pay

Tools of resolution poor

Breach in trust at the highest level of the company

Trust and confidence had entered a nadir from which there was no way back …… 

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.

I have found that the actions of the respondent during the period of October 2015 – February 2016,when the complainant resigned, were sufficient to ground a constructive dismissal .I must also find that arising from the delay on behalf of the complainant in formalising his grievance regarding the excessive hours ,he played a role in his own demise . I judge this to be a 20% contribution.

However, I find that the mutual bond of trust and confidence between employer and employee had broken down entitling the complainant to leave his 33 year employment with the respondent.

Having regard for the evidence on mitigation and loss, I order the respondent to pay compensation as the only practical remedy in accordance with Section 7(2) of the Act to the amount of €15,000.00..

Dated:   24 April 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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