ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00001293

Parties:

Complaint(s):

Date of Adjudication Hearing: 02/03/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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).

Background:

The respondent employed the complainant as a bar worker from 5^th of June 2015 until the 27^th of September 2015 (last day worked) or 16^th of October 2016 (date of resignation). He was paid €385 and worked 35 hours per week. The matter was heard in the course of four hearings between 29^th of September 2016 and the 27^th of April 2017. The parties provided evidence together with written and oral submission.

Summary of Complainant’s Case:

The complainant submits that he was summoned to a disciplinary meeting on the 25^th of September 2015 by the respondent’s group head of operations (HO) and head of security (HS)in circumstances where a demand was made that he account for a discrepancy in the cash tills on the day/night in question. He was shown CCTV footage and asked to account for the fact that “he was cancelling drinks orders”. He offered a full and frank account for his actions in respect of the particular transactions and suggested that his manager would be in a position to further assist. In particular he explained that on request from a customer that he reprint a receipt that he was directed by his manager to re-input the customer order into the till and that the matter could be reconciled at the end of the night. As it happened the same customer repeated the same order some 30 minutes later and he decided therefore not to receipt the order (ring it in) to rectify the till balance. The respondent was not happy with his immediate explanation and its (HO) described it as “bullshit”. He felt intimidated as the respondent’s representatives spoke over him in raised voices when he spoke. He had no witness nor was he represented, nor was he presented with the allegation in line with the respondent’s internal policies and procedures. He was subjected to a further disciplinary meeting on the following evening at which his line manager (LM) attended in addition to those representing the respondent at the previous meeting. He was asked to identify the earlier transaction (mentioned above) from an 80 page printout. He requested a copy and was informed that he could not have the current copy or indeed examine it any further. He attempted to inform the respondent at the meeting that the working environment was “not positive/healthy” to be met with inappropriate language and shouting. He was instructed to return to work and suspended with pay afterwards.       The LM contacted him on the 28^th inst. to inform him that he should return to work on the following day. He felt intimidated having been “ambushed “and humiliated by the respondent. His representative wrote to the respondent on the 1^st of October notifying that he was certified unfit to return to work as he was suffering from work related stress. His representative wrote once again on the 16^th of October 2015 to advise that he was still suffering from stress and requesting that he be paid €165 due to him. Furthermore the letter stated that the respondent had set out to force the complainant to resign, that he had lost faith in the grievance procedure and that he was left with no alternative but to resign. No reply was received to either letter.

It is submitted that the respondents conduct was such as to fundamentally breach/alter the employment relationship in circumstances where the complainant was intimidated and subjected to abuse and unfounded allegations. The respondent failed to accord his basic procedural rights pursuant to S.I. 146/2000 as it relates to the conduct of the “on the spot” meetings. It failed to telephone or meet with the complainant to discuss the situation concerning the outcome of the disciplinary process or to engage with him at all when it was put on notice that he was suffering from work related stress. Accordingly he was constructively dismissed from his employment.

Summary of Respondent’s Case:

The complainant in common with all employees was advised of the respondent’s beverage control procedures in August 2015. The complainant was one of five employees who were asked to explain their failure to follow the procedure. At the meeting on the 25^th of September 2015 to deal with the matter he was advised that it was not a disciplinary matter and that the respondent simply sought to understand why the procedures were not observed. He was able to account for one failure but not so for another but suggested that him LM might be able to help. A subsequent meeting was convened on consent and took place in the presence of his manager on the 26^th inst. He was again advised that it was not a disciplinary matter however he became uncomfortable “presumably as a result of his inability to explain certain discrepancies – and suggested that he was being called a liar”. His LM did not confirm his version of events. The complainant alone mentioned misappropriation and deceit and alleged that he was being harassed and verbally abused at the last meeting. In view of his reaction the meeting was discontinued on the basis that the discrepancies would be further investigated at a later stage. He was reassured that he was not being accused of theft as he had alleged and that the respondent was anxious to have the matter resolved. The complainant did not return to work thereafter and chose to communicate through his solicitor. It is of note that the other four individuals who were asked to explain their non-compliance with the new procedures did so without acrimony or recrimination. From the respondent’s perspective the complainant was in it’s employ until such time as he sought his P45.                                                                                                            The letters of 1^st and 16^th of October (letter of resignation) were not received as they were posted to the wrong address.

Findings and Conclusions:

The parties diverge in relation to the nature and conduct of the meetings of 25^th and 26^th of September 2015. I am satisfied that these meetings were not conducted as part of the grievance and disciplinary procedure. The evidence of the respondent representatives was that the recording devices used during the meetings were visible and known.

I am satisfied on balance that the meetings were not disciplinary as alleged by the complainant. I do not accept that the conduct of these meetings was offensive as to amount to a repudiation of the complainant’s contract in the circumstances described in evidence.

More importantly the complainant was precipitate in resigning from his position on the 16^th of October 2015. He was acting under advice at that point and it was open to him to raise a grievance against the managers whom he accuses of having abused him during the September meetings.

In this regard the law is settled concerning the standard of reasonableness required on the part of the employee in that it requires that s/he take all reasonable steps to apprise the offending employer of its unreasonable behaviour thereby offering an opportunity to the employer to amend its behaviour appropriately to the satisfaction of the employee. Therefore other than in exceptional circumstances and in almost all cases the employee in the first instance is required to use any/all agreed dispute resolution mechanisms available where it would not be unreasonable to do so. The so called “mirror image concept” has been adopted to envisage the particular requirement.              The fact that he did not do so renders his position fatally flawed.

Decision:

Section 41 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.

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.

For the reasons stated above I find that the herein complaint is not well founded.

Dated:   25^th August 2017