ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00007522

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00009990-001 01/03/2017   Date of Adjudication Hearing: 17/10/2017 Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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:        Summary of Complainant’s Case:

The Complainant gave extensive verbal evidence in support of the details on her Claim form. She had not prepared a written statement for the hearing. She commenced employment on the 1st November 2013 in the Respondent’s Joinery Business. The employment proceeded uneventfully until mid-2015 when issues arose over the physical infrastructure of the premises, leaking pipes, allegedly disconnected toilets, lack of hand washing facilities etc. The Complainant had an Industrial Accident by slipping on an allegedly wet floor in June 2016. Difficulties also arise over the role of the Respondent’s father and Uncle in the business and her carrying out of additional administrative duties (collecting rents from tenants) for the Uncle. The question of the cleaning of the windows in the public display area and the carrying of display items into/out of the display area also became a source of complaint. The Respondent, most unfairly it was alleged, frequently queried her alleged non-attendance in the Office and her time keeping. The Complainant maintained that there were no issues here as any absences were justified either medically or due to business commitments to the other Respondent parties specifically the Respondent’s Uncle. In general, the Complainant found that the Respondent would quite often give her varying instructions. As she had never been supplied with a Contract of Employment this was a confusing situation. In late February (27th) 2017 a heated argument took place between the parties concerning the complainant’s alleged time keeping. This was followed by a further verbal dispute of the 1st March 2017 regarding the alleged practice of the Complainant of consuming alcohol at work – wine with her lunch. The Complainant did not feel that this was anything untoward as the wine had been Christmas gift from the Respondent. The meeting got heated and the Complainant felt that the behaviour and demeanour of the Respondent were completely unreasonable. She left the office and did not return. She lodged her complaint with the WRC that afternoon. She did not feel able to return to the workplace due to the Unreasonable stances and behaviours taken by the Respondent both at the meeting on the 1st March but also in the preceding weeks.    

2:        Summary of Respondent’s Case:

The Respondent did not submit a written statement. However, his Representative outlined matters from his point of view. The Respondent principal gave extensive oral evidence. Although subject to differing interpretations the basic facts in the Complainant’s statements were not contested. The issue of building works on the Premises impacting on the plumbing, toilets etc. were identified as being largely due to work on neighbouring premises and were not as dramatic as portrayed by the Complainant. It was maintained, supported by written evidence, (copies of text messages) that the Complainants attendance and time keeping during 2015/2016 were often erratic. Having been an excellent employee at the beginning of her employment she became unreliable particularly during late 2016 and early 2017. In February 2017, the Respondent became aware that the Complainant was drinking in the office during working hours. The Respondent gave photographic evidence of bottles of wine beside office materials and in public display. This was completely contrary, in the view of the Respondent, to the proper running of a public office The meeting of the 1st March 2017 was intended to be a “clear the air” meeting and it was never the intention of the Respondent to end the Complainants’ employment. The matters to be discussed were steps to put the public office back on track and to tighten up what he perceived were slack working practices by the Complainant. It was acknowledged that the meeting had got heated. However, the Respondent denied that it had got as dramatic as portrayed by the Complainant. The Respondent had suggested a time out, approximately one hour, to consider matters. This had been agreed to. The Complainant never returned to the office and the Respondent was left with no option but to assume after some weeks had passed that the Complainant had effectively resigned her employment.  

3:        Findings and Conclusions:

3:1     Having reviewed all the evidence, both written and oral, the main fact that was apparent was that the Complainant had left the employment on the 1st March 2017. In her WRC claim form filed that same afternoon she had claimed “Constructive Dismissal”. Accordingly, the accepted legal tests that apply to a constructive dismissal case must apply her. The tests are (1)       Fundamental breach of Contract by either of the parties such as to make it impossible for an employee to remain and leaving them with no option but to resign. (2)         Unreasonable Behaviour by the Employer to such a degree as to render the continued employment of the Complainant impossible - effectively leaving them with no option but to resign. I will consider these in sequence. 3:2     Fundamental Breach of Contract Reviewing the evidence presented I could not find any major “fundamental breach” of contract. The Complainant was paid on a regular basis (evidence supplied) and none of the issues raised regrading suggested alterations to lunch times or the moving of items of stock could be regarded as changes that supported a constructive dismissal.   I did not find the Claim supported by this legal test. 3:2     Unreasonable Behaviours. The evidence here was of a series of events and incidents, stretching back to 2015, that formed the background to the meeting of the 1st March 2017. The oral evidence of the parties was quite conflicting. Several key points were made. The Complainant admitted that a fellow employee, a shop floor worker, had cautioned her about drinking in public in the office. He had told her that the Respondent employer would take a very dim view of it. In her written complaint form she had the statement “He said I could stay but that he would be taking a day’s wages from me as a punishment for drinking the glass of wine and would have to clean the entire shop windows and floors three times a day”. It was unclear as to how she had interpreted the Respondents’ suggestion of “taking an hour out” to consider matters. The Complainant maintained that she had requested the opportunity to get a friend to accompany her as a witness to meetings as the behaviour of the Respondent was unreasonable and his working demands were constantly changing. All things considered the meeting was not marked by any great formality of procedures. It was accepted that the Complainant had left the meeting and whether this was for an hour to consider matters or for a longer period was disputed vigorously. In any event the Complainant never returned to work. The Complainant maintained that she had telephoned the WRC Information line and it was on their advice that she did not go back. No details were available as to who the contact in the WRC was. The almost immediate (within hours) filing of the WRC claim form did not indicate to me a person who was seeking avenues to resolve issues locally or informally. Evaluating the evidence, I came to the following views The Complainant is a third level post Graduate Student. At the hearing, she did not have a written submission and I found her oral evidence, while genuinely given, somewhat disjointed. She placed great reliance on an alleged Phone Call to the WRC Information line which she maintained justified her position in not returning to the employment. I found this hard to believe. It was clear that the Complainant had lines of Communication with the Company Accountant (a member of the Respondents’ extended family) and the Respondent’s Uncle, the owner of the site, that could have been utilised to at least seek to resolve matters informally post the 1st March meeting. No evidence was given of any efforts by the Complainant to utilise these channels or indeed a referral to any outside agency such as a claim under the Industrial Relations Acts to the Workplace Relations Commission seeking to resolve matters while still in employment. The fact that the Respondent employer did not have formal documented procedures did not completely absolve the Complainant from making efforts to locally resolve issues as an alternative to a resignation. Nowhere in the evidence was there any indication that the Respondent wanted to formally end the employment, hot words at the meeting of the 1st March notwithstanding. The work relationship had been good initially and there was no reason to believe, in his view, that this could not continue once the “air had been cleared”. The oral evidence of the Respondent was direct - he had had no plan to dismiss the Complainant and was taken aback by what he felt the Complainant’s actions in “walking off the job”. However, it was also clear that he had not made any great efforts to contact her post the 1st March meeting. There was a high degree of frustration on both sides but not to the level to justify a claim for constructive dismissal. 3:3     Conclusion In conclusion, having considered all he evidences both oral and the limited written materials I came to the view that the legal tests of Breach of Contract and Unreasonable Behaviours required to justify a claim for Constructive Dismissal were not satisfied. Accordingly, I find that the Claim for Constructive Dismissal is not well founded and is dismissed.    

4:        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.   ActComplaint/Dispute Reference No.Summary Decision /refer to Section 3 above for detailed reasoning. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00009990-001 Claim dismissed / standard tests for Constructive Dismissal not satisfied.   Dated:   18th December 2017 Workplace Relations Commission Adjudication Officer: Michael McEntee Key Words: