Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00003109-001

07/03/2016

The Complainant claimed Constructive Dismissal –on the grounds that

(1)    Her Contract of Employment had been fundamentally undermined by an unjustified and unwarranted Demotion in September 2015 from her Team Leader position.

(2)    The behaviours of her employer during the period from mid 2015 to the date of her resignation in February 2016 were completely unreasonable and had effectively contributed massively to her resignation. A Disciplinary Hearing regarding Time Keeping initially began in June 2015 was proven to be false and was withdrawn by the Respondent. The Respondent, on becoming aware that the Complainant was in a relationship with a fellow employee, took a series of actions to make life as difficult as possible for both partners. The Respondent had not engaged in any meaningful way with the Complainant in efforts to resolve the situation regarding the Team Leader position and furthermore their behaviours towards the Complainant and also her partner, a fellow employee, during his period had been completely unreasonable. The Complainant cited various incidents and examples to substantiate this view.

The Respondent strenuously rebutted the Complainant’s claims.

Regarding the Team Leader contract situation it had been clearly advertised as a Temporary “rotational” position in January 2015. The ending of the Complainant’s occupancy of the Team Leader position was perfectly acceptable and in keeping with Company policy. There was noting personal in this ending of what was a Temporary position and the ending or rotation out of this position was in keeping with Company wide policy. The Complainant was an Operative and always remained an Operative - albeit she had been temporarily engaged as a Team Leader for a period from January to September 2015.

Every opportunity was afforded to the Complainant to address any grievances she had with the ending of the Team Leader position. Meetings were held in September and November with the Complainant and all her concerns were, in the view of the Respondent, fully addressed. Copies of extensive correspondence between the parties were produced in evidence.

The Complainant's decision to resign in February 2016 was completely unwarranted. The Respondent had further meeting with her post the Resignation e mail and efforts were made to persuade her to withdraw the resignation. These came to naught and the resignation was accepted at the end of February 2016.

The Respondents absolutely deny any suggestions that their behaviours were unreasonable in any sense.

4:1     Burden of Proof and the Legal Context.

As set out in the submissions in this case a Constructive Dismissal case has to effectively satisfy two tests.

1. The Contract Test – was the conduct and actions of the employer so fundamentally at odds with the basic contract of employment that it left the employee with no option but to resign?
2. The Reasonableness Test? – was the behaviour of the employer so unreasonable as to leave the employee with no option but to resign?

Headline legal cases in this area would be as quoted in the Complainant’s submission Denning MR in Western Excavating (ECC) Ltd v Sharpe [1978] ICR 221 and Allen v Independent Newspapers (Ireland)   Ltd (UD 641/2000). The Complainant’s submission also makes reference to the extensive discussion of this area in Redmond: Dismissal Law In Ireland, Tottel Press, 2nd Ed 2007.

However it is recognised by all the Authorities and as pointed out by Donovan in : Employment Law -2016 Round Hall Press that

“the statutory tribunals have consistently set the bar high in order for the Complainant to succeed in a claim for constructive dismissal –the conduct must be sufficiently grave, such that a reasonable employee in that same position would easily have been driven to, leave the job there and then.” Dorothy Donovan P108 Employment Law 2nd Ed Round Hall Press 2016.

Accordingly to apply theses tests to this case it is necessary to consider the evidence presented both orally and in written submissions.

4:2   Consideration of the Evidence

4:2:1     The Contract Test:

The key issue here was the ending of the Team Leader position in September 2015. Taking the initial advertisement of the position – (E mail of the 13^th January 2015 from the Respondent to all staff) – as a guideline the position was clearly of a temporary nature. The Complainant may have felt that the passage of time in the positon gave a semblance of permanancy to the role but the fundamental fact was that the Respondent was entitled to rotate her out of the position in September 2015. This is not a “fundamental” breach of contract as required by the law in this case – it is not a justifiable ground on which to base a claim for Constructive Dismissal.

4:2:2   The Reasonableness Test:

Extensive witness evidence was given by the Respondent which was open to questioning by the Complainant. In summary key meetings took place on the 23^rd September 2015 and the 5^th November 2015. Extensive follow up correspondence and minutes from these meetings was provided. It did not appear to me to be the actions of an Unreasonable Employer. The Resignation E Mail of the 7^th February (written as a follow up to the Resignation letter of the 1^st February -) stated that “I find it impossible to work under these circumstances”. The Complainant stated that she “felt demoralised, victimised and dismissed”.

The Respondent replied by lengthy letter of the 10^th February 2016. This letter was a follow up to a meeting on the 9^th February 2016. The Complainant was asked to reconsider her resignation which the Respondent stated they refused to accept.

As there was no response to this letter it was followed up with a confirmation letter on the 22^nd February in which the Respondent stated that they had “No option but to accept your resignation”. An Appeal of the Resignation was offered but not taken up on by the Complainant. The Complainant felt that an Appeal would have been “pointless”.

Oral evidence was given by the parties in support of the written evidence.

On balance and having considered all the evidence I did not find the actions of the Respondent employer so “Unreasonable” as to justify the actions of Constructive Dismissal.

4:3     Final Summary

Having considered the evidence presented and the two tests of Breach of Contract and Unreasonableness as required by the Law I did not find the claim of Constructive Dismissal well founded. I, accordingly, dismissed the claim.

Act

Complaint/Dispute Reference No.

Decision

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00003109-001

Claim dismissed for the reasons stated in Section 4 of this Adjudication set out above.