ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004306
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005247-001 | 16/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005247-002 | 16/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00005247-003 | 16/06/2016 |
Date of Adjudication Hearing: 09/11/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or 7 of the Terms of Employment (Information) Act, 1994 and or Section 8(1B) of the Unfair Dismissals Act, 1977, and or
section 27 of the Organisation of Working Time Act, 1997 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).
Complainant’s Submission and Presentation:
I am entitled to 5 weeks holiday within a 12 month period. My employer has failed to pay holiday pay due to me. |
My employer did not provide me with a statement fully setting out my terms and conditions of employment. In addition, my terms and conditions of employment were unilaterally changed by my employer in relation to working hours which were substantially reduced. I was neither notified of this change in writing nor was a statement fully setting out my terms and conditions of employment provided to me. |
I was wrongly accused by my employer Mr. XX of stealing incontinence pads. In doing so Mr.XX defamed me I was then told that I would not progress within the company as had been promised to me. The allegation of theft was repeated to me by the accountant for the company Ms. MM. I issued proceedings in defamation against my employer. My employer since that time has bullied and harassed me. My position with the home became completely untenable and I was left with no option but to resign from my employment with the company. I have been penalised as a result of the issue of court proceedings. My working conditions deteriorated to the point where my working hours were severely curtailed. I was met with aggressive treatment and rebuttals by my employer and management, mistruths were made against me my name and character to fellow employees and management and I suffered in my ability to advance my position in my employment as a result of management's actions. I had holiday pay withheld from me and suffered a unilateral variation in my terms and conditions of employment. This list is not exhaustive. In light of the above I could have no confidence whatever that my employer (who is the owner/manager of the home) would deal with me fairly or in accordance with my contract of employment should I engage in the grievance procedure. No grievance procedure had been given to me prior to the defamation incident but one has now of late been delivered to my solicitor. The grievance procedure contained in the handbook was only brought to my attention after I commenced proceedings. I know of no other person within the company who could deal with a grievance brought by me. |
Respondent’s Submission and Presentation:
CA-00005247-001 - Holiday Pay
This was rebutted by the Respondent and holiday pay evidence produced to substantiate the Respondent position
CA-00005247-002 - Notification of T and Cs of Employment.
A technical breach of the Act may have taken place here but was rectified as soon a possible in correspondence to the Complainant’s Legal Advisors. Evidence was given in relation to working hours and weekly changes /flexibilities. There was nothing out of the ordinary in any changes.
CA-00005247-003 – Unfair Dismissal
Denied absolutely – the Complaint resigned voluntarily on the 27th May 2015. All allegations regarding unreasonable behaviours by the Respondent were resolutely denied. This was supported by considerable written and oral evidence.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and/or 7 of the Terms of Employment (Information) Act, 1994 and or section 27 of the Organisation of Working Time Act, 1997 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(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.
Issues for Decision:
Did the breaches of the relevant Acts take place?
Was a bona fide case established that a Constructive Dismissal took place due to the Behaviours and Actions of the Respondent. ?
Legislation involved and requirements of legislation:
The Terms of Employment (Information) Act, 1994, the Unfair Dismissals Act, 1977,
The Organisation of Working Time Act, 1997
Decision:
CA-00005247-001 - Holiday Pay
Having examined the Holiday pay records of the Respondent, (only those that were presented in evidence), I am satisfied that all Holiday obligations were discharged.
This element of the claim accordingly falls.
CA-00005247-002 - Notification of T and Cs of Employment
A technical breach of the terms of the Terms of Employment (Information) Act, 1994 took place in that the complete details were not supplied until requested by the Complainant’s Solicitor. In mitigation the Respondent plead that he already given an abbreviated statement in or about June 2015 but no copy was available as evidence.
I award the sum of € 450, approximately one half weeks pay, as Compensation for this breach of the Act.
CA-00005247-003 – Unfair Dismissal
A Constructive Dismissal claim has two basic tests – firstly a fundamental Breach of Contract giving the Complainant no option but to resign and secondly Unreasonable Behaviour by the Respondent employer of such an egregious nature as to render the continued employment of the Complainant impossible and leaving the Complainant with no option but to resign.
A key factor, in addition, is the use/non use of Employer/Employee Grievance Procedures etc. and the opportunity afforded to the Employer/Employee to address any concerns the parties might have prior to the resignation.
Consideration:
Key Facts:
The Complainant wrote a letter of resignation dated the 27th May 2016.
A dispute over materials bought privately by the Complainant from a major Respondent supplier, under a type of staff discount scheme, had developed in late December 2015. This resulted in the Complaint engaging legal advice and initiating a Defamation Action in the Circuit Court against the Respondent.
It appeared to me from the available evidence, oral and written, that a simple matter had got completely out of hand and a lot of misunderstandings had been allowed to develop. A simple production of a receipt from the supplier showing that the Complainant had paid for the disputed goods would have resolved the issue at the point of initiation. I failed to understand why it had taken the involvement of two firms of Solicitors to get this simple document presented to the Respondent and thereby clarify the issue.
The Complainant referred to the Respondent telling her that the “Theft” issue was being “marked up” on her Personnel file – the Respondent’s Financial person Ms. AB gave evidence. The Complainant took an unusually negative view of this reference. The Respondent was of the view that a note had to be kept somewhere of what was basically an accounting issue and once clarified would be removed.
The Contract Test in a Constructive Dismissal case
It was obvious that once the firms of Solicitors became involved regarding the Defamation action much documentation was being sought/exchanged but the evidence did not point to any breaches of the fundamental contract of employment.
The oral evidence from the Respondent both Mr. XX and Ms. MM was that qualified Nurses were like “gold dust” in the Nursing Home industry and it absolutely not in their professional or operational interests to loose the services of the Complainant – defamation action not withstanding.
All evidence pointed to normal interactions between the Respondent and the Complaint in regard to hours of work, holidays etc. Pay sheets, holiday records were all produced in evidence.
Taking all this material into account I could not see any major evidence of a “fundamental breach of contract” as required by legal precedent such as to justify a resignation.
The Reasonable Behaviour test
The Complainant and the Respondent had diametrically different views on this issue.
The Complainant submitted that had had been penalised by the Respondent in relation to the Circuit Court case, had her holiday pay withheld and had her working hours severely curtailed. The allegations form a substantial part of the letter of Resignation of the 27th of May 2016.
The Respondent Principal Mr.XX was alleged to have raised his voice, shouted at the Complainant and been generally aggressive and disagreeable to the Complainant during the period from January to May 2016.
The necessity here was for a reasonably independent witness. Ms. ZX, Director of Nursing, joined the staff on the 23/02/2016 – effectively she was the Complainant’s direct superior. She gave oral evidence to the Hearing that she found nothing amiss in the treatment of the Complainant by the main Respondent Mr.XX. She was questioned about the use of loud voices etc. and found nothing out of the ordinary. In a written document dated the 15th August 2016 she stated that at no stage (Feb to May period) did the Complainant bring any matters of concern to her attention.
“ Ms. AA, did not discuss with me or bring to my attention any grievance , perceived or other wise which she may have felt in relation to her terms and conditions of employment” – note of 15th August from Director of Nursing
The other elements of the Complainant’s allegations were vague and no strong evidence was advanced to support the details of the allegations. Oral evidence was given by Ms. ZX, a fellow nurse, that she had not witnessed anything amiss. Another staff member ,a Mr. XC, gave written evidence in the form of copies of Text Messages to and from the Complainant –again these were of little value to the Complainant’s case as they basically said that Mr. XC had seen and heard nothing of substance.
The Labour Court has consistently pointed to the need to have substantial facts and not “vague allegations”. In this case I could not find the substantial facts to support the case of Constructive Dismissal.
The Opportunity to Address any Grievances. Use/Non Use of Procedures between the Parties
In this case the exchanges between the parties from January 2016 to the resignation date were, it appears, largely conducted via the firms of Solicitors and focussed primarily on the Defamation action. Copies of all correspondence were exhibited in evidence. The focus was on the proposed Defamation action and I could not see any references to employment matters that were subsequently raised in the Resignation letter of the 27th May 2016.
The Receipt for the Goods purchased, which in my view would have gone a long way to resolving the matters first raised on the 28th December 2015, was not produced to the Respondent until the 20th May 2016 although the Complainant’s Solicitors in their letter of the 29th February acknowledge having the receipt. This may have been appropriate in a Defamation action but was not conducive to resolving any employment issues which did not appear to be on the agenda until the Resignation letter of the 27th May 2016.
It is accepted that the formal Grievance procedure was not produced until March 2016. The Complainant was still in employment at this stage and remained so for another two months.
The Complainant maintained (resignation letter of the 27th May 2016) that she could have “no confidence whatever in the Grievance Procedures”. There is no evidence to support this assertion. At this time the Complaint was very well legally represented as was the Respondent. The Grievance Procedures, in an employment context, should have been explored fully. Any suggestions of Bias, Lack of Proper Procedures in any investigation etc. could have been well addressed by the Solicitors firms.
Of interest I noted that the Complainant had very quickly (within two weeks) secured employment in another Nursing Home.
The offer (7th June) from the Respondent to have the matters considered by the Mediation Services of the WRC was not followed up on by the Complainant. The final suggestion from the Respondent in the letter of the 1st July requesting the Complaint to reconsider her resignation and avail of the Grievance procedures was also not followed up on.
The Defamation Action was an entirely different matter on another legal track but appeared to me to have completely skewed the picture and the normal employer/employee processes relating to the issue of the 28th December were lost sight of.
Conclusion
Having considered all the evidence both oral and written, including the extensive exchange of correspondence between the legal firms I have come to the view that the resignation letter of the 27th May 2016 was a calculated legal step, written with legal advice. For all the reasons set out above and taking the background factors into account I do not consider that it can form the basis of a Constructive Dismissal claim.
Accordingly the claim for Constructive dismissal is dismissed.
Dated: 24 February 2017