ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003817

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. In 2010 he was appointed as a manager in a sister shop, his employment ended on 7^th March 2016. His gross weekly pay at this time was €650.00. 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 submitted a written submission. In it the Complainant submits that the shop he had worked in for six years was taken over by the Respondent in or about 19^th February 2016 and that immediately upon taking over the new owner created a very hostile and aggressive work environment. The Complainant endured two weeks of hostile treatment from the Respondent. He was blamed by the Respondent for the "shop not making money". The Respondent demanded the Complainant work extra hours and stay late, for no extra pay.

The Complainant submits that the aggressive nature of the Respondent caused him great stress and he tried to talk to the Respondent about it but was continually fobbed off.

The Complainant submits that matters came to a head when he rang the shop one Saturday to enquire about the Roster only to be told that he was not rostered to work at all. The last week he worked was 7-13 March but he was never paid for this week.

Following the termination of his employment he got on a part-time (2 days a week basis) in December 2016, but on the other side of the city.

The Complainant submits that the behaviour of the Respondent was objectively and clearly unreasonable and unfair within the meaning of the Act and further that the demands that he work unpaid overtime and the change in the Complainant's position and duties represent clear breaches of the employment contract. The Complainant tried to engage constructively with the Respondent but the Respondent was not minded to so engage and ultimately dismissed the Complainant in the manner aforesaid.

In oral evidence the Complainant said that the first week working with the new owner, the Respondent was fine but the second week was not good; he was asked to work until 5.00pm but he said no. Everything he did was criticised. He was asked to do two jobs. He tried to raise issues with the Respondent but he was just told, "everything will be alright".

On the week of the alleged dismissal the Complainant said he had a hospital appointment and he had to leave work at 12.00pm. He got cover but the Respondent was very annoyed at him. They discussed matters in the office on Monday evening. He told the Respondent that he was putting too much pressure on him and he could not carry on. The Complainant told the Respondent "if things don't change I won't come back".  

The Respondent did not return to the shop until the Friday in order to train someone else in. He thought the Respondent was going to talk to him but he did not. The following day, Saturday, he called to the shop to check the roster but his name was not on it. The following week he went to Social Welfare who told him he had to get a P45.

In response to questions from the Respondent the Complainant stated that the Respondent was talking to him every single minute. He said he had received the letter from the hospital on the Thursday preceding the Monday appointment but had failed to inform the Respondent of the appointment on the Friday because the shop was busy. The Complainant agreed that he had spoken with the Respondent on the Monday evening in the Respondent's car on the way home and the Respondent had asked him to reconsider his decision to leave.

Summary of Respondent’s Case:

The Respondent stated that he did not dismiss the Complainant rather he resigned when changes were made to the working culture in the shop. The Respondent said not alone did he not dismiss the Complainant he tried to prevent him leaving.

The Respondent stated that he believed the Complainant had resigned for two reasons, firstly due to a conversation the Complainant had had with the Back Office Manager and secondly because of the conversation he himself had with the Complainant in the car on the way home on the Monday evening. On that journey the Respondent made great efforts to stop the Complainant from leaving his job.

The Back Office Manager gave oral evidence in which she stated that the Complainant came to her on the Monday in question at about 09.00-09.30. He said to her that he was leaving that day. She stated that he used the words, "I leave here today". She was very surprised and she advised him to think long and hard about it. She asked him to come back and help with a handover. On Tuesday he asked her for a letter saying he had been let go, she said that was not possible as she was not his employer.

In cross examination the Office Manager stated that the Complainant was very clear on the Monday that he was leaving and he reiterated that on the Tuesday when he came in looking for a letter.

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 on 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 Complainant stated that the Respondent told him that nothing he ever did was right and everything he did was wrong; hardly the words of a man who later attempted to stop the Complainant leaving his position.

Regarding the matter of stock and the allegation that the Respondent threatened the Complainant by asking, "the money is going out the door, 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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