ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004772

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 21/02/2017

Procedure:

 In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, 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).

Complainant’s Submission and Presentation:

The Complainant was an employed from September 21^st 2009 and was resigned on September 2^nd 2016 and claimed constructive dismissal due to the Respondent not giving him work

The Complainant was suspended from work without pay in December 2014.

The Complainant was not afforded an investigation nor an opportunity to clarify his position regarding a past criminal conviction which occurred seventeen years ago.

The Complainant was not afforded a risk evaluation under the Department of Social Protection Sponsor Guidelines.

Despite numerous grievance letters, phone calls and two meetings with the employer, over the following 21 months, the Complainant was not permitted to resume his position within the workplace.

A proposal of alternative work was discussed in July 2016, this was not a realistic solution as there was no possibility of such work within the restricted parameters stated by the employer. The Complainant waited nine weeks for such work, which did not materialise.

As a result of the employers conduct and having been suspended without pay for 21 months the Complainant was left with no other option and sent a letter of resignation on the 2^nd day of September, 2016.

The Claimant finally received a copy of the grievance procedure on the 24^th November, 2016 and states that he had exhausted such procedure within the 21 months that he was suspended without pay.  

Respondent’s Submission and Presentation:

The Complainant commenced employment with the Respondent on 21^st September, 2009 as a part-time casual substitute trainee instructor. He was employed on a casual basis when additional staffing resources were required to supplement the existing instructional staff and meet the demands of the Centre. His work and earnings were;

• 2009 (28 days)                   €1,732.80
• 2010 (88 days)                   €10,876.60
• 2011 (80 days)                   €10,055.73
• 2012 (84 days)                   €11,986.52
• 2013 (87 days)                   €10,330.00
• 2014 (75 days)                   €8,748.02

In response to a Garda Vetting exercise in March 2015 Complainant requested a meeting with the Centre Manager which took place on the 19^th March 2015. At the meeting Complainant explained that he had received a criminal conviction for a drug offence in 1999 and had served a 3 year custodial sentence. Complainant had never previously disclosed this matter to the Centre Management.

Complainant completed the Vetting form on 1^st April 2015. There was substantial delay in receiving Complainant’ Disclosure from the Garda Vetting Unit and it was not returned until 23^rd September 2015. The Disclosure document detailed the 1999 conviction (9 year sentence) and a subsequent offence (obstruction) resulting in a fine of €260 in 2003.

In March 2016 Complainant was advised that, due to the serious nature of the offence disclosed in the context of the learner profile at the Centre the Respondent stated it would not be in a position to assign Complainant further work.

The Respondent is required, under legislation, to place the highest priority on promoting and preserving the health and safety of its students. The Respondent must, at all times, take into account the interest of its students and the trust placed in us by their parents and guardians. As a provider of publicly funded Education to children, the Respondent could not risk any perceived condoning of the conviction and its concealment, or the potential adverse consequences arising from an employee’s interactions, in an extra ordinary position of trust, with impressionable children.

The Complainant appealed this decision and a meeting was called for the 28^th June 2016. A further meeting was called for the 4^th July, 2016 attended by the Chief Executive, the HR Manager, the Complainant and his Representative. At these meetings the possibility of assigning the Complainant alternative work was discussed however the Complainant resigned his position on 2^nd September 2016.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 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 considered all the issues in this case the Complainant made a justified case that his prior conviction, the late Garda vetting process, his subsequent suspension and elimination of work hours put him in a very difficult position with his employer. The continued suspension, without pay, for a considerable period of time and obvious lack of income due to being not offered work were substantial reasons for the Complainant to consider his continued employment with the Respondent. While there was merit to both sides arguments the Complainant put forward enough grounds to justify his resignation based on the circumstances he found himself in after a considerable period of time being employed by the Respondent. Having considered the merits of both cases I find that the Complainant was unfairly dismissed and I award the Complainant 15,000 Euros to be paid within four weeks of the date of this decision.

In the event that this decision, once received, is accepted by both parties, the Complainant has agreed that the Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 Ref no CA-00006806-002 will be withdrawn and the Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 Ref No CA-00006806-003 will be withdrawn. In the event the decision is not accepted by either party, or both parties, then both of the above cases will be listed for Hearing.

Dated:   9^th May 2017