ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003815

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/05/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room G.05 Lansdowne House

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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:

The Complainant commenced employment in a shop in 2006, his employment ended on 7^th March 2016 at which time he held the post of Assistant Manager. His gross weekly pay at this time was €445.00. A complaint, under Section 8 of the Unfair Dismissals Act 1977, was received by the Workplace Relations Commission on 20^th June 2016.

A hearing of the complaint was held on 18^th January 2017, in the absence of the Respondent. Following application from the Respondent it was decided to re-hear the case and a hearing took place on 17^th May 2017. Compensation was the agreed redress. The fact of dismissal is in dispute.

Summary of Complainant’s Case:

The Complainant's representative submitted a written submission.

The Complainant submitted that he had worked in the shop for ten years and had been promoted in that time. The shop was taken over by the Respondent in February 2016. According to the submission the Respondent's manner was aggressive and confrontational from the start. The Complainant was threatened by the Respondent by such phrases being addressed to him as "if you don't pull up your socks you're out" and "are you going to pay", when discussing out of date stock.

It was submitted that the Respondent made unreasonable demands of the Complainant such as getting a new uniform at his own expense and working an extra half-hour to hour every day without pay. The Complainant was also made to stand at the entrance to the shop and act as a security guard while new employees were doing his job. He was also put under pressure to drive to the shop and monitor it to assist in the effort against shoplifting.

The Complainant submitted that the persistently demeaning and aggressive behaviour of the Respondent was as extreme and unreasonable as to represent a fundamental and repudiatory breach of his employment contract. The Complainant submits that, taken as a whole, the conduct of the Respondent was so unreasonable as to justify the Complainant in terminating his employment.

The Complainant gave direct evidence at the hearing. He stated that he knew the shop was in trouble when the new management took over, it was "push, push, push". For example he was expected to do things more quickly, work harder and do things like cleaning the back yard which he would not have done before.

The Complainant gave evidence to support the alleged demands made of him as outlined above. The Complainant did say he spoke to the Respondent, he told him that he was making people (staff) uncomfortable. The final straw came on the day he was asked to do security while others, whom he had trained in, did his job. That was the last day he worked for the Respondent.

The Complainant said he started work a week later in another similar employment but was paid €45 less per week.

In questioning from the Respondent the Complainant agreed that in small shops such as this staff are expected to move around. When asked whether "who is going to pay" is a phrase the Complainant stated that it was the intimidating manner in which it was said to him, that the Respondent had come right up to his face, that made it a threat.

The Complainant agreed that in the he had not paid for the uniform mentioned above. He also agreed that he had not been asked to be a security guard but was asked to stand at the front of the shop.

The complainant also agreed that there was an Employee Handbook with a Grievance Procedure in it available to him. When asked had he raised a grievance the Complainant said he had only done so at the last meeting with the Respondent but that "he must have known by our reactions".

Summary of Respondent’s Case:

The Respondent gave oral evidence only.

The Respondent state that when he took over the shop it was in serious trouble and stock losses had to be remedied and that he was involved on a daily basis in the shop.

Regarding the demands made of the Complainant the Respondent stated that everyone has to play their part, particularly managers. He also stated that he had to bring in staff as there were not enough people on the roster to allow for holidays.

The Complainant stated that as there was very little office work to be done he tried to keep the senior people in the shop as much as possible.

Regarding the raising of issues by the Complainant, the Respondent agreed that he had discussed the situation with the Complainant and had explained to him that the business was in trouble and that changes had to be made.

Findings and Conclusions:

The Complainant contends that the behaviour of the Respondent was so unreasonable as to justify him terminating his employment with the Respondent. The Respondent puts forward that all he did was try and tighten up a business that was in serious difficulty.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“the termination by the employee of his/hers contract of employment with the employer whether prior notice of the termination was or was not given to the employer in the 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 prior notice of the termination to the employer”

In cases such as this the burden lies on the Complainant to prove that it was reasonable for him to terminate his own employment due to a significant breach by the employer of a fundamental term of his employment contract or because of the nature and extent of the employer’s conduct and the circumstances in which the employee was expected to work.

Based on his evidence I find that the Complainant has not demonstrated that there was any breach of his employment contract nor that his work circumstances or situation merited a decision to walk out of his employment.

The Complainant was not forced to leave, it was his decision and was not based on any unreasonable action by the Respondent. The day before he left the Complainant was asked to stand and watch what was going on in the shop not do security guard. Asking a manager to observe the goings on in his shop does not seem to me to be an unreasonable request, yet for the Complainant it was the final straw. The Complaint complained about having to pay for a new uniform but in the end he did not have to pay for any such uniform.

Regarding the matter of stock and the allegation that the Respondent threatened the Complainant by asking, "who is going to pay for this", it does seem the Respondent did make the comment in a crude and aggressive manner however I do believe it was just an expression, not a real threat. At no time was it alleged the Respondent attempted to recoup any losses due to poor stock rotation from the Complainant.

Further, prior to an involuntary resignation/departure an employee must exhaust all reasonable attempts to resolve their complainants and grievances with their employer. As an initial step an employee must inform their employer of the issues causing those complainants and grievances. Making the employer aware of them allows the Respondent to address those concerns. There is no evidence that this initial step was undertaken in any real way by the Complainant prior to his departure, despite the existence of a formal Grievance Policy, known to the Complainant.

The Complainant's contention that he was forced to leave or that in the circumstances it was reasonable for him to leave does not stand up to scrutiny.

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.

Having carefully considered all the evidence I find that the Complainant was not constructively dismissed. Accordingly, the claim under the Unfair Dismissals Acts, fails.

Dated:   05/07/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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