ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005901

Complaint(s):

Date of Adjudication Hearing: 31/01/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Location of Hearing: Galway Maldron Hotel

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 an office manager from 9^th of September 2005 until the 8^th of June 2016. She worked 8 hours per week and was paid €179.92 per fortnight. The parties made oral submission to the hearing.

Summary of Complainant’s Case:

The complainant submits that she was constructively dismissed. The behaviour of the respondent was such that it was not possible for her to continue in the employment. She was not provided with written terms and conditions of her employment until June 2009 in anticipation of a company audit.

She was requested and agreed to take on a cleaning role when the cleaner was dismissed in 2010. Her request for 3 months additional maternity leave made during the course of her leave in November 2011 was granted but her request for reduced hours per week was not granted. She returned to work in early March 2012 and continued to work normally until one year later at which time her hours were unilaterally reduced by the respondent. She requested and was granted compassionate leave in order to take care of her sick father in September 2014 but was asked by the respondent if she would consider a severance package at that time. On attending the office following the death of her father on the 5^th of January 2015 the Mr K (Director) was rude to her and at that point suggested a settlement figure of €1,700, which she was asked to consider. She contacted him on the following day to decline the offer and he was rude and aggressive towards her ordering her to return on the following week. The working environment was totally unsuitable when she did return on the following week, her computer was not working, heating was not working and she found herself isolated from her colleagues. Her job function had changed considerably by the beginning of April to the extent that her administration duties were reduced. By January 2016 her 6 accounts duties were removed at which point her position was reduced to that of receptionist. Her request for annual leave was met with a terse and sarcastic assertion that she could take the whole summer off if she wished by Ms K (Director). This was an attempt to undermine her and drive her out of her job. She was continuously checked without reason or feedback. She was informed on the 4^th of May that she had failed an assessment of her receptionist work. The respondent had surreptitiously assessed telephone calls made through the reception and informed her that a review would be undertaken. She was informed at the subsequent meeting on the 11^th of May that “things had changed around here” and that there would be a move towards automation of the telephone system. The door was locked during the meeting during which the respondent engaged in threatening behaviour towards her. Thereafter she sought the advice of the local CIC and her doctor and was advised to get another job or retrain. She immediately handed in her notice and worked the same. On May the 16^th she was told by Ms K that she should synchronise her watch as she was one minute late returning from her lunch. She was excluded from attendance at the race celebration to mark the company’s 40^th Anniversary in 2015.

There was nit picking, isolation, intimidation and unwarranted scrutiny since the beginning of 2016.

Summary of Respondent’s Case:

The respondent submits that there was no dismissal constructive or otherwise and that the complainant resigned her position as set out in her letter of the 25^th of May 2016. Her exit interview form of the 8^th of June makes no complaint whatsoever against the respondent and states that her reason for leaving is personal. It is accepted that the complainant’s role had changed over the years and that her hours had reduced. The reduction of her hours was ultimately requested by her and granted by the respondent. None of the matters relied upon by her to justify her alleged constructive dismissal were ever complained of. The complainant was treated with the utmost consideration and regard (details provided). She was facilitated in her every request where possible. She was not bullied or isolated as alleged. No door was locked. She sought additional holiday for summer 2016 as her sister was coming home and she was not told to take the whole summer off. All staff was informally invited to race celebration – there were tickets left over. The assessment of the telephone system was part of a company wide assessment and it was not personal to the complainant. Other staff used the system for the remainder of the week when she was not at work. The complainant along with everyone else was asked to clean their own work station and not become a cleaner. There were problems with the equipment post her return but they were dealt with as normal.

Findings and Conclusions:

1. of the Act provides - that dismissal, in relation to an employee, means - The termination by the employee of his/her contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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 a constructive dismissal case the claimant must satisfactorily demonstrate that the respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for him/her to continue in the employment and which fundamentally breached his/her trust and confidence in the bona fides of the other party. In so doing the claimant must also show that his/her action/behaviour in resigning his/her position was reasonable in all the circumstances (mirror image concept).

In most cases this will mean that the employee must at the very least raise the concerns s/he has prior to resigning their position. The complainant did not do so in this case and therefore has not in my opinion satisfied the concept outlined above despite the fact that the bullying allegations are made against the directors of the company.

Noting the respondent’s denial of any unreasonable behaviour whatsoever I find that the failure of the complainant to raise those alleged unreasonable behaviours which she submits led to her resignation and constructive dismissal is fatal to her case in the circumstances described.

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.

The complaint is not well founded.

Dated:   6^th June 2017

Workplace Relations Commission Adjudication Officer: Michael Hayes