ADJ-00001949

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001949

Complaint for Resolution:  

Date of Adjudication Hearing: 8th September 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 18^th November 2015, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was scheduled for adjudication on the 8^th September 2016. The complainant is a bar manager and the respondent company operates a bar/nightclub. At the adjudication, the complainant was represented by James Jones, solicitor and three witnesses attended for the respondent.

In accordance with section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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.

Attendance at the Hearing: 

Complainant’s Submission and Presentation:

The complainant commenced working for the respondent on the 12^th March 2006 and initially worked in part-time roles. He was later employed in a full-time capacity and became Bar Manager of a named nightclub in June 2014. He refers to praise he received from clients and customers as well as the increased financial turnover of the facility.

The complainant outlined that this matter arose because the Investigation Manager had spotted certain searches he had entered into Google while in the office. The complainant outlined that on the 18^th August 2015, he had been working in the office, where he was booking parties and making orders. He was also replying to emails and phone messages. At the same time, he used the computer to search for personal information. This was an everyday thing and he saw other people use their personal gmail accounts. The respondent had never made it clear that there was zero tolerance of personal use. The complainant said that it had been very busy leading up to this time, and this had been the first quiet day. He was answering work emails at the same time as conducting internet searches on personal matters.

The Investigation Manager accused the complainant of gross misconduct and as a result, the complainant had been demoted to a less well-paid role. He also lost certainty as to his hours. The complainant commented that the respondent had not provided an IT use policy and there was no reference to there being zero tolerance for personal use. The complainant also said that the appeal process had been unfair as it had considered broader competence issues, which had never been put to the complainant. He submits that a warning would have sufficed with regard to the events of the 18^th August 2015. The respondent had not introduced filters to regulate the use of the internet at work and no warning had been given or other opportunity provided to the complainant.

The complainant had been devastated at being demoted unjustly and without proper procedures being followed. He could not face meeting customers, clients and staff members as a senior bar tender after having worked for so many years to be promoted to bar management. He had been in a devastated and depressed state when he submitted his letter of resignation of the 5^th October 2015 as the sanction levied on him was wholly unreasonable and excessive, as well as the embarrassment of being demoted and the loss of pay.

In a letter of the 2^nd September 2015, the complainant addressed the findings of the investigation report of the 31^st August 2015. He refers to his positive work record and states that the complaint had not been put to him. He had also not had the opportunity to view the internet history or the CCTV footage. He refers to the work tasks he dealt with on the 18^th August 2015 and undertakes not to use the work internet for personal searches in the future. He states that the investigation meeting was the first occasion that he knew that it was a requirement for all staff members to clock in and that he has now implemented this.

In an email of the 13^th September 2015 to the Disciplinary Manager, the complainant disputed that he had abused the company email or internet policy and that he had not been guilty of gross misconduct. He states that he undertakes not to use the internet for personal purposes and that a finding of gross misconduct would be unreasonable and disproportionate. He says that he loves his job and wants to continue working hard in his job.

In the letter of appeal of the 23^rd September 2015, the complainant challenges the decision to move him to the senior bar tender role because this penalty is too severe. He asserts that the respondent does not have a contractual entitlement to reduce his wages and that if his wages are improperly interfered with, he will have no alternative but to take steps to protect his rights. He also raises the matter of losing hours. The complainant points to his success in increasing turnover by 27.6%. He disputes the finding of gross misconduct and that he welcomes any training or assistance in allowing him discharge his role as bar manager. He states that there is no “zero tolerance” policy in respect of IT usage and responds to the Disciplinary Manager’s comments regarding attending to alarms. He refers to the demotion as a humiliation and as devastating.

By letter of the 5^th October 2015, the complainant tenders his resignation to the Disciplinary Manager. It refers to him having very little choice because his mental and physical health were no longer provided for within the work environment. It expresses his regret of having to do this and wishes the respondent success in the future.

In submissions, the complainant asserts that the respondent breached the Code of Practice of Disciplinary and Grievance Procedures (S.I. 146/2000) in that it did not first issue a verbal or first written warning; it failed to conclude the investigation within the 10 day period provided in the policy; he was demoted on grounds of capability, even though this had not been the original charge and given that there was no formal internet policy and no training given on internet use or internet filters applied, the respondent had acted unreasonably and disproportionately.

The complainant referred to Gallagher v Revenue Commissioners [1995] E.L.R. 108 to assert that the complainant was entitled to fair procedures and a fair hearing, in particular with regard to the timely conclusion of the investigation. Relying on C v Mid Western Health Board [2000] 11 E.L.R. 38, the complainant had the right to know the full case against him, in particular that he did not know that his competence and capability would be at issue, as held by the appeal. Contrary to the disciplinary policy and S.I. 146/2000, the complainant did not know he was under investigation until the start of the investigation meeting. The complainant submits that it was inappropriate and unfair for the Investigation Manager to have been both the complainant and the investigator, relying on Cassidy v Shannon Castle Banquets [2000] 11 E.L.R. 248 and Dowling v Cumann Na Doaine Aointaithe Teo (UD545/2007). The complainant refers to Mary Redmond’s Dismissal Law and the requirement to list both demotion and reduction in salary as potential disciplinary sanctions, otherwise an employer would be in breach of contract in imposing such a sanction. It is submitted that the respondent acted in breach of the complainant’s contract of employment in the manner which the investigation and disciplinary process were carried out, which also breached fair procedures and natural justice, allowing the complainant deem himself to have been dismissed by the actions of the respondent.

The complainant stated that since the ending of his employment with the respondent, he had been looking for work, for example at the airport, in car dealerships and in cleaning firms. He found employment in May 2016 as a truck driver, but this had come to an end since then. He confirmed that he held a licence to drive a truck. He commented that he did not have the confidence to go back into the bar industry. The complainant submitted screenshots of seven online applications he made in order to secure alternative employment.

Respondent’s Submission and Presentation:

The respondent submits that the complainant’s resignation from his employment was premature. Following a disciplinary process, he had been issued with a temporary demotion and would have been eligible for promotion within six months. He had resigned without availing of the grievance procedure. The respondent acknowledged that a grievance complainant could not rehear the sanction of demotion, but it could address any subsequent mistreatment. The demotion allowed the respondent to provide retraining to the complainant. It did not accept that the complainant would have been uncomfortable following the demotion. The issue in the appeal had been the complainant’s lack of accountability for what had occurred.

The respondent had faced three issues to investigate. The first related to the payroll function as all staff were obliged to clock in by fingerprint. The second issue was using the internet to make personal searches, in particular as the complainant had reprimanded colleagues for using their personal phones at work. On the 18^th August 2015, the complainant was availing of a full office day. The respondent had asked him to reduce the number of office days he took. The internet history from the computer used by the complainant showed that limited work had been done. The complainant was responsible for his own hours, so it had amounted to a clocking offence to be clocked in at work when making these personal searches.

At the adjudication, the Investigation Manager outlined that she had visited the site on the 21^st August 2015 to look into the recording of clocking in/out by staff. She had wished to check the machinery and the computer. She had found the material by chance. Both the disciplinary procedure and the employee handbook referred to respondent’s internet policy. She outlined that it had been the responses of the complainant that had put the respondent in a “pickle” in relation to how to address them. In respect of the finding made of gross misconduct, this was based on the websites consulted and the complainant’s refusal to cut back on office hours. It was also a factor that he had implemented the internet policy with others. She also referred to the complainant being clocked in while engaging in personal internet use.

The Investigation Manager said that she met with the complainant on the 29^th September 2015 to discuss the sanction imposed following the disciplinary process. He raised how many hours he would be allocated and she replied that he had a contractual entitlement to 45 hours per week and it was only to be the rate of pay that would change. The Investigation Manager accepted that the correspondence sent after the complainant’s resignation was the first written reference to the hours being guaranteed, but that it had been said to the complainant at the meeting of the 29^th September 2015. She said that the complainant had been a well-respected and exemplary member of staff, but it had been his response to these issues, in particular as a manager. The issue had been his refusal to accept that there had been a breach.

In documentation, the Investigation Manager notified the complainant on the 21^st August 2015 of the investigation meeting, raising the complainant’s internet use on the 18^th August 2015 when he was at work and the general clocking in issue. The internet searches related to business loans, job applications in haulage dealerships and a related Diploma course, car insurance, a holiday booking website and general facebook use. The respondent provides a transcript of the investigation meeting of the 24^th August 2015. The Investigation Manager is recorded as saying that the purpose of the meeting is to gather feedback and that a conclusion will be issued to the investigation.

On the 31^st August 2015, the Investigation Manager issued a report following her investigation. This identifies that this investigation stemmed from an attendance to the nightclub on the 21^st August 2015 in relation to the time and attendance system. The respondent was seeking to establish whether hours submitted to payroll were based on the roster as opposed to when employees clocked in and out. It identified that on the 18^th August 2015, the complainant had been clocked in to work and between the hours of 11.02am and 3.44pm had engaged in personal internet searches on the work computer. The report sets out the issues raised at the outset of the investigation, namely the complainant’s personal internet usage on the 18^th August 2015 and the failure to collate accurate attendance records.

In the section entitled “feedback for consideration”, the report records the complainant’s comments regarding not knowing that personal internet usage was not allowed and provides a commentary on his knowledge of the respondent’s attempts to save money, including saving on office time. The report states that unlike other managers, the complainant availed of an office day as opposed to doing office duties at quiet times. The report states that there were various duties that the complainant could have attended to at the time of the internet searches. In respect of the clocking in issue, the report records that the complainant said that he had followed the practice of his predecessor. It holds that the complainant should have questioned staff’s practice of not clocking in and out. In concluding comments, the report states that the personal internet usage represents a serious breach of trust by a manager at a time that the site was cutting back to reach savings. It finds that this represents a clocking offence as the complainant spent 4 hours and 42 minutes on non-work related duties. It finds that this complaint is well founded. In relation to the general staff clocking in issue, the report states that the complainant should have questioned the practice of not always clocking in, but accepts that he may have followed previous practice. In italics, the report concludes “Therefore my recommendation is that the issue in respect of spending office time on personal matters instead of working is a serious breach in trust, is considered a clocking offence and a wilful neglect in the discharge of his duties and considered gross misconduct in line with the company disciplinary procedure and as stated on his contract of employment.”

In an email of the 10^th September 2015, the Investigation Manager informs the Disciplinary Manager that her use of the term “complaint” had meant “the issue” or “the allegation”. She said that the complainant had been sent notification of the detail and context of her investigation. She stated that the internet search history had been left available for the complainant to check and it had been noted at the investigation meeting that CCTV could be viewed. The Investigation Manager sent this email following an email of the 9^th September 2015 from the Disciplinary Manager raising points from his meeting with the complainant.

In an email of the 30^th September 2015, the Investigation Manager refers to the previous night’s meeting with the complainant. She refers to availing of the mediation services of the Workplace Relations Commission to find the best way forward. She states that the complainant would be heavily involved in the training and mentoring programme. It raises the option of the complainant transferring to another site. It comments that the respondent can be “selective” in what is communicated to staff, for example, to refer to duties being reorganised or that staff issues are now only dealt with by the Disciplinary Manager. She states that the respondent is very open to feedback and wishes to ensure that the complainant is as comfortable as possible.

In cross-examination, it was put to the Investigation Manager that the internet policy allows for some personal internet usage; she replied that the respondent had used the section dealing with IT in the disciplinary policy and not the employee handbook. This was the disciplinary policy that the complainant had applied to others. The Investigation Manager outlined that the disciplinary policy had been provided to the complainant when he became an Assistant Manager. It was put to the Investigation Manager that the first time the complainant saw this document was the 21^st August 2015; she replied that the complainant had invoked the policy in the course of his duties and that it was surrounding him. It was in the Manager’s folder. She said that the disciplinary policy ranked above the employee handbook. She said that the respondent’s entitlement to cut pay came from the disciplinary policy. It was put to the Investigation Manager that the complainant’s contract of employment makes no reference to a guaranteed number of hours; she replied by referring to the email of the 30^th September 2015. She stated that the complainant had received paid time off until his resignation. It was put to the Investigation Manager that given that this related to the events of one day and the complainant’s eight years of service that it had been disproportionate to sanction the complainant by taking him two steps down the ladder and to receive a pay cut, as well as no guarantee of hours; she replied that the respondent had wanted to talk to the complainant about his hours and to build a roster with him. It was put to the Investigation Manager that there was no contractual entitlement to cut pay; she replied that she was not aware that a demoted staff member would keep their pay and the logic was to provide for equality within management.

The Disciplinary Manager gave evidence. He said that it became apparent from the complainant’s response to the clocking-in and internet policy issues that he needed re-training. This arose as he would have known about these policies. He said that he had taken into consideration his work record and performance and this led him to recommend demotion over dismissal.

The transcript of the disciplinary meeting records the Disciplinary Manager as stating that the meeting’s purpose is to go through the recommended outcome of the investigation and the conclusions reached by the Investigation Manager. He states that following the meeting and the feedback given by the complainant, he would reach a final conclusion. By letter of the 22^nd September 2015, the Disciplinary Manager informed the complainant that the outcome of the disciplinary hearing was that the complainant had failed to meet the standards required by the respondent and that he was to be demoted to the Senior Bar Tender position, with a change in salary from €700 per week to an hourly rate of €14. The Disciplinary Manager attached a detailed memorandum to the letter of the 22^nd September 2015. The report states as background that the complainant had searched for personal items “rather than” completing work duties, between the hours of 11.02am and 3.44pm. It refers to the respondent’s efforts to make savings and the complainant’s assertion that he required office hours to complete administrative tasks. The report refers to the disciplinary policy and the explicit reference to abuse of email and internet as an example of gross misconduct. It referred to the second issue of staff not complying clocking in and out. It refers to an email from the Investigation Manager to the complainant of the 21^st August 2015. It records the complainant as acknowledging the time spent on personal internet usage, but that he did not believe this to be wrong. It refers to a submission made by the complainant, i.e. his letter of the 2^nd September 2015. The Disciplinary Manager sets out his correspondence to the Investigation Manager and the complainant following the meeting of the 8^th September 2015. The Disciplinary Manager addressed matters not contained in the Investigation Report, for example the complainant having to attend the site or adjoining sites out of hours. The report states that the complainant’s personal internet usage on the 18^th August 2015 had been for 98 minutes, with the two longest periods being 35 minutes between 1.15pm and 1.50pm and 30 minutes between 3.14pm and 3.44pm. The Disciplinary Manager states that the personal internet usage appeared to be the complainant’s main priority on the day in question. He questions the complainant’s response, given that he manages staff regarding their personal internet usage. The Disciplinary Manager also makes general comments about the appropriateness of the responses of the complainant, given that he is a manager, for example related to responding to alarms, addressing neighbouring sites and supervising clocking in and out. He refers to an event involving a “friend” of the respondent directors and the costs/benefits associated with this.

The Disciplinary Manager sets out the following considerations in reaching his decision. He refers to the use of the internet for non-work purposes being included in the disciplinary policy and that this amounted to a clocking offence as not all time had been spent on work related activities. He records that the complainant had acknowledged that he had committed this act on other occasions and that he was the most senior manager on site, apart from the directors. The Disciplinary Manager recorded the complainant’s assertions regarding his work record. He stated that his main concern related to the complainant’s response of “I don’t know” to the two issues identified in the investigation. He refers to the availability of company policy on work computers. He states that the complainant shows an apparent lack of business understanding. In the section entitled “Determination”, the Disciplinary Manager refers to the complainant’s service to conclude that dismissal is not warranted. He proposes demotion as an alternative, proportionate course of action. He bases this decision on the seniority of the complainant and the lack of understanding he displayed. He was either not aware of the differing standards he applied to himself and to others, or that he was not honest in his feedback to the disciplinary process. The letter provides that the company should review the case in six months’ time. In this time, the letter states that the complainant should receive job training and mentoring “in order to give him an opportunity to reach the requirements for consideration for a position at the same standing” and states that a “training plan should be put in place”.

In cross-examination, the Disciplinary Manager outlined that the issue with the clocking system was people not using it as opposed to any problem. It was put to him that the complainant had secured compliance as soon as this issue was raised with him; the Disciplinary Manager did not accept that this was the case. He said that the use of the internet was covered by the employee handbook. He accepted that he had been the complainant’s line manager for eight or nine years. He said that he had spent considerable time with him on management issues and that he would benefit from additional mentorship. It was put to the Disciplinary Manager that the treatment of the complainant had been part of a cost-cutting exercise and that the complainant’s contract of employment had been ripped up. He had no guaranteed hours of work. The Disciplinary Manager denied that this was the case and stated that the respondent’s senior bar tenders worked 45 hours per week. He did not accept that it was only management that were on 45 hours per week.

The respondent provides a transcript of the appeal hearing on the 25^th September 2015. This records the Appeal Manager going through the points of appeal contained in the complainant’s letter of the 23^rd September 2015. He comments that the disciplinary policy provides that the respondent is entitled to demote the complainant as a sanction, and that this involves a reduction in salary. He further states that where there is a finding of gross misconduct, dismissal or demotion are the possible sanctions. He comments that IT and internet use are specifically referred to in the definition of gross misconduct. He puts to the complainant his awareness of the policy in his “double standards” in enforcing the policy amongst floor staff. During the course of the hearing, the Appeal Manager questions the complainant regarding his role in increasing sales. He also puts it to the complainant that a manager should know about the importance of not wasting time and in seeking other work. He states that, if it was quiet, the complainant could have stood in for floor staff, thereby saving on labour costs. The transcript records the complainant as saying that he should have checked the HR folder in relation to the clocking in practice. He stated that he was not guilty of discharging his duties and that he was not aware the personal internet usage was not allowed. He undertook not to do this again.

In submissions, the respondent relies on Smith v RSA Insurance Ireland Ltd (UD 1673/2013) to assert that in claims of constructive dismissal, the employee faces a high burden of proof on grounds either of a repudiatory breach of contract or on the reasonableness ground. It submitted that the complainant prematurely resigned and had not exhausted internal procedures. It referred to its efforts to get a named employee of the Workplace Relations Commission to act as an “impartial contact”. The respondent informed the complainant that it would message to staff in a way that they were not aware of the complainant’s demotion to ensure that he would be comfortable in work. It submits that it was not reasonable for the complainant to resign. In respect of the breach of contract test, the respondent was entitled to demote the complainant as a disciplinary sanction and that it had not been unreasonable in doing so. It had not been unreasonable because of the complainant’s lack of effort to understand procedures and his lack of accountability. The respondent relies on Berber v Dunnes Stores [2009] IESC 10 and the objective test for a breach of contract claim based on the implied term of trust and confidence.

Findings and reasoning:

The complainant was employed as a bar manager and the respondent is a nightclub and part of a company group of pubs and similar venues. Initially commencing in 2006, the complainant worked in various roles and reached the position of bar manager in 2012. His employment came to an end following his letter of resignation of the 5^th October 2015.

As this is a case of constructive dismissal, the complainant presented his case first, followed by the respondent. Constructive dismissal is defined in section 1b) of the Unfair Dismissals Act as “dismissal, in relation to an employee means… (b) the termination by the employee of his 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.”

The classic formulation of the legal test in respect of constructive dismissal was provided by the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The complainant referred to the respondent’s breaches of the disciplinary policy, for example that the investigation report was sent later than the 10 days provided in the policy. I note that this period included a time when the complainant was on annual leave and the Investigation Manager undertook to only send the report on his return to work. Even if this factor had not been in place, this cannot be considered to be a fundamental breach of the contract of employment. I reach the same finding in relation to the other breaches of S.I. 146/2000 and the disciplinary policy advanced by the complainant, for example being demoted on grounds of capability, even though this had not been the original charge, no formal internet policy being in place and no training given on internet use or internet filters applied. Even if established as fact, they do not amount to repudiatory breaches of contract.

It is open to the complainant to assert that the respondent’s actions amounted to a breach of the implied term of mutual trust and confidence. As referred to by the respondent, the Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test for whether conduct had breached the implied term of mutual trust and confidence in every contract of employment was an objective one. Finnegan J. held:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The respondent acknowledged at the adjudication that a grievance from the complainant could not have overturned the sanction imposed following the completed disciplinary process. Where an employee says the disciplinary process was so oppressive as to amount to constructive dismissal, the onus is on the employee to show oppressiveness and the disciplinary process is assessed accordingly. This was the approach adopted by the Employment Appeals Tribunal in McKenna v Pizza Express Restaurants Ltd [2008] 19 E.L.R. 234 where it assessed whether or not the respondent’s disciplinary process had been proportionate.

The disciplinary procedure provides that measures should be applied in a fair and consistent manner and that grievances should be handled in accordance with the principles of natural justice and fairness. The policy provides that any allegation be set out in writing, that the source of the allegation be given and that the employee shall have the opportunity to confront or question witnesses. It lists informal counselling/coaching and a verbal warning, a first written warning, a final written warning and dismissal as stages in the disciplinary process. In a section entitled “serious misconduct”, it gives the following examples of “gross misconduct”: bullying or harassment, theft and “abuse of the company email or internet system including accessing or downloading non-business related material especially if that matter is sexual or harassing in nature, or using the system for any non-business matter.” It provides that the respondent shall issue a determination within 10 days of the date of the final investigative meeting. It provides that an employee who has received a final written warning or who has been notified of their dismissal may appeal the decision within five days of the decision’s notification.

Having reviewed the oral and written submissions of the parties, the following issues arise. The first thing to note is that, at the investigation stage, the Investigator Manager made disciplinary findings, for example concluding explicitly that the use of the internet was gross misconduct. There is no specific provision in the disciplinary policy for such findings to be made at the investigation stage. The purpose of the investigation stage is to reach findings of fact, for a separate disciplinary stage to consider in determining whether a disciplinary breach has occurred, and if so, what the appropriate sanction should be. This case illustrates the difficulties caused by the making disciplinary findings at the investigation stage; despite having read through the extensive documentation, I do not believe that the respondent established that the complainant was not engaging in work-related tasks at the same time as he surfed the internet for personal purposes.

The sanction imposed in this case was not dismissal but that of demotion. This is a case of constructive dismissal, where the complainant must satisfy either of the legal tests outlined above. The question is even if the complainant was dissatisfied with the disciplinary outcome, was he entitled to consider himself to have been dismissed by the actions of the respondent, or was it reasonable for him to resign.

Having considered the evidence, I find that the complainant has not discharged the burden of proof on either ground. I reach this conclusion for the following reasons. The complainant’s case is that the disciplinary finding and sanction were disproportionate and excessive. In respect of the sanction of demotion, he asserts that it would be humiliating to return as a senior bar tender and raises the issues of his hours and pay.

In assessing the actions of the parties, I am struck by the following aspects of the case. The following exchange is recorded in the transcript as having taken place towards the end of the appeal hearing. The Appeal Manager states “It is the case that a training plan will be put in place to allow you to return to a Bar Manager role after 6 months if successful?” The complainant replies “I understand that part as well but as a senior bar tender I wouldn’t be able to get trained that way as I am supposed to be first of all and second of all it would be really embarrassing if it happened within the site.” It is striking that at the appeal stage, the respondent had outlined a path to facilitate the complainant to return to the Bar Manager role within six months.

I am also struck by the meeting of the 29^th September 2015 and the follow-up email sent by the Investigation Manager of the 30^th September. I accept the Investigation Manager’s evidence that she said to the complainant that he had a contractual entitlement to 45 hours and this would not be reduced on demotion. I am struck by the open nature of the correspondence of the 30^th September, which is sensitive to how the change in duties is communicated to staff, so they would not be directly informed of the demotion. The correspondence refers to the complainant’s input in designing the training programme and third party mediation to discuss “the best way forward”. This suggests that there was still some way to go in setting out the terms of the demotion and it was a process in which the complainant would have input. In respect of pay, I note that the respondent had acknowledged the complainant’s contractual entitlement to hours. I also note that the pay issue could have been addressed in mediation but also could have been the subject to a Payment of Wages claim at the end of the six month period contemplated in the disciplinary sanction. In his letter of appeal of the 23^rd September 2015, the complainant states he will have no alternative but to take steps to protect his rights if any deduction to his pay was made.

While the process applied by the respondent can be criticised, this is a case of constructive dismissal as opposed to dismissal. In circumstances where the respondent offered a path back to the Bar Manager role and was sensitive to the effect on the complainant of the demotion and its concession in relation to hours and an open approach to relation to training and mediation, the actions of the respondent do not amount to a repudiation of a term of the contract of employment, including that of mutual trust and confidence, and nor was it reasonable for the complainant to resign. For these reasons, the complaint does not succeed and is deemed not well founded.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the claim of unfair dismissal. For the reasons outlined above, I find that the complaint does not succeed and is deemed not well founded.

Dated:   20 March 2017