ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005432

Complaint for Resolution:

Date of Adjudication Hearing: 01/03/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or otherwise referred to in the said Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for dispute resolution under Section 8 of the Unfair Dismissals Act of 1977. The Complaint is brought by way of Workplace Relations Complaint Form dated the 6^th of October 2016 and the Complaint has been made within six months of the purported dismissal. 

Parties : An Accounts Manager and a Telesales company

Complainant’s Case:

The Complainant’s complaint is one of Constructive Dismissal. Pursuant to the Unfair Dismissals legislation, the burden of proof must shift to the Complainant from the Respondent Employer and it is for the Complainant to demonstrate that he has acted reasonably in all the circumstances, such that he had no alternative other than to tender his resignation.

The Complainant tendered his resignation without notice on the 1^st of September 2016. The resignation was by way of email and was cordial in tone – ending in the phrase “pleasure working with you”.

I heard the Complainant's oral evidence. The Complainant submitted an Email after the hearing on the 1^st of March 2017 and I have considered the observations made therein as part of my overall consideration of this case.

Respondent’s case:

The Respondent provided me with submissions of which the Complainant had not had sight. I allowed the Complainant some time to consider what the Employer was saying through these submissions.

I heard the Director’s oral evidence.

Assessment of evidence heard:

I have carefully considered the evidence adduced in the course of this hearing. The Complainant had worked with this mobile phone telesales company since in and around 2014. The salary was a basic one with the opportunity to earn commission.

The Complainant accepts that at a date unknown but between to the 1^st and 6^th of September a Mr. Q – the Operations Manager contacted him by phone. The Complainant says he cannot remember the specifics of that conversation and the said Mr Q himself was not available to give evidence . However, the Respondent Director indicated that he had instructed Mr. Q to contact the complainant to persuade him to stay on with the Employer and in particular to stay on to do abig event that was due to be taking place in Dubai in the October of 2016. The Employer believed a good commission could be made by the Complainant at this event . The Employer states that he did this in Good Faith and is evidence that he had no reason to believe that there were any underlying issues.

The Respondent Employer did detail other aspects of the conversation as he had learnt them from Mr. Q. However, I am mindful of the fact that this is hearsay evidence on the part of the Employer in circumstances where the Complainant cannot confirm (or deny ) the veracity of same. What I believe is pertinent and important is that the Complainant does remember the fact of having had the telephone conversation with Mr. Q (having been initially unsure) albeit he cannot recall the specifics of the conversation.

On September the 6^th, the Complainant re-submitted his resignation and this time he gives reasons which are many and serious. The Complainant says he is being bullied in the workplace and works in a stressful environment. The Complainant says his remuneration is low and there is ambiguity surrounding the commission. He works long hours with little incentive he says. He declares that he no longer wishes to be part of a company which lacks human handling skills and which has led to his low quality of life. The Complainant confirms in this same letter that he is flying out of the country the next day.

It is accepted by the Complainant that these many and varied and serious issues were not referenced in the earlier resignation tendered on the 1^st of September. In fact, it is accepted by me that the Employer was not formally on notice of any of these Grievances prior to the letters of the 1^st and 6^th of September issuing.

In terms of previous issues having come to light, it was confirmed by the Complainant that in the April of that year (2016) the Complainant had notified the Director of the Respondent company that his own immediate line Manager had been making inappropriate comments to the Complainant. The Complainant conceded that this Grievance and/or complaint was handled appropriately by the Director who dealt with it on an informal basis and to the Complainant’s satisfaction.

This narrative seemed to me to demonstrate a workplace where Grievances could be raised and were taken seriously although the Employer did confirm that there was no formal handbook which outlined company policy – which is regrettable.

I find it unusual that the Complainant having successfully had a previous Grievance or complaint dealt with by his Employer, did not choose to go down the same route in advance of tendering his two letters of immediate resignation on the 1^st and 6^th of September 2016. The Complainant was making the case at the hearing, that the letter of the 6^th of October had the effect of putting the Respondent on Notice of the Complainant’s difficulties in the workplace and that the Respondent was obliged to ignore the fact that the Complainant had also tended his resignation and should instead have opted to try and deal with the issues raised.

It is inevitable that I must consider the reasonableness of tendering a resignation in these circumstances where the Employer has not been put on prior notice of any difficulties being experienced by an Employee and has not been given any opportunity to deal with any such issues raised.

Both the Director and the Complainant confirm that they subsequently met in a Starbucks Coffee house. Neither was able to detail nay significant conversation had at this meeting. It appears the purpose of the meeting was to hand over a mobile phone.

On balance I cannot accept the Complainant’s proposition that the Employer was obliged to ignore the resignation and to at these tardily raised complaints. The Complainant also signalled an immediate intention to go abroad and I accept and believe that this had been his initial motivation and reason behind resigning from his position.

To succeed under the Unfair Dismissal Acts in cases of Constructive Dismissal, there is an onus on the Complainant to establish that the decision to resign was reasonable at the point in time when the decision to resign is made and I do not believe in these particular circumstances that a retrospective attempt to justify the decision should be allowed.

It is noted that the Employer – concerned by the allegations - went so far as to engage an HR expert to look into the issues of Bullying which had been raised by the Complainant and in fact the Complainant agreed to meet with this individual though it was not with the intention of pushing to be returned to the workplace.

Decision:

The Complainant’s complaint under the Unfair Dismissals fails.

Dated:               31 May 2017