ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004494

Complaint(s):

Date of Adjudication Hearing: 07/06/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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).

Unfair Dismissals Act 1977

CA-00006525-001

Background:

The claimant was first employed by the respondent as a Pro-rata Part-time Assistant Lecturer by C.I.T in 2001. The status of the claimant's employment changed over the subsequent years from fixed term contract to a contract of indefinite duration of 12 hours per week.

Towards the end of the academic year 2013/14, and in preparation for the academic year 2014/15, the claimant's line manager decided to assign the claimant to deliver 6 of his hours in semester 1 on the Bachelor of Arts in Early Years Education. One of the reasons that the claimant's line manager assigned these hours was that he had increased capacity because the demand for one to one tuition hours in CSM had diminished the claimant however disputed this as almost all of his individual theory students for the previous year had wished to continue studying with him, leaving very little room for him to fill his timetable. In fact much greater timetable deficits were filled in the past. On receiving his timetable for the academic year 2014/15 the claimant sought a meeting with his line manager to discuss what he perceived to be drastic alterations to what his usual teaching practices would have been. The claimant was advised by his union T.U.I, that due to many years of dealing with this particular line manager that the claimant should bring a representative with him. The line manager responded on the night of June 13th 2014, with only 5 days remaining in academic year seeking a meeting. However due to the lack of notice the claimant's union and the line manager were unable to accommodate each other, as the Union do not undertake meetings after the academic year end.

On June 20th 2014 the claimant's line manager sent the claimant an e mail confirming his timetable. The claimant felt it was evident from this email that the line manager had redistributed his previous duties to other staff members.

On August 28th 2014 the claimant submitted a medical certificate stating that he was unfit for work with effect from September 1st 2014. The claimant remained on various forms of sick pay until May 1st 2016 when these avenues became exhausted, however he still remained an employee of C.I.T

The claimant tended his resignation by letter dated June 13th 2016 and also by letter dated June 13th 2016 the claimants Solicitors also informed the respondent of the claimant’s intent to take proceedings against them for constructive dismissal.

The respondent replied by letter dated June 20th 2016 highlighting that as the claimant had not invoked or exhausted his internal grievance options and had declined a meeting to discuss the issues, the respondent did not believe the claimant had any grounds for claiming constructive dismissal. On that basis the respondent asked the claimant to reconsider his position and withdraw his offer of resignation. By letter dated August 12th 2016 the claimant confirmed his resignation and his intention to initiate proceedings.

Findings:

Both parties submitted written /verbal evidence at the hearing. The parties were allowed additional time to find a solution but this was unsuccessful.

Based on the evidence submitted I have formed the following opinion.

I find that the inability for both parties to engage at an earlier stage has certainly contributed significantly to the current situation.

I find that both parties did not behave in a reasonable manner conducive to finding a resolution.

I find that the claimant could and should have availed of the respondent’s internal grievance policies prior to the end of the academic year 2013/14. The claimant did not require the Union to invoke those procedures but rather due to the Union’s issue with availability after June 20th 2014 the matter could not have been scheduled to be dealt with the following September.

I find the respondents lack of engagement with the claimant from September 2014 leaves a lot to be desired.

I find that the claimant’s contract of employment contains, at clause 6.a, the following, "Teaching such assigned classes as deemed appropriate by the management of the Institute, day or evening...”.

I find that the claimant did express his doubt as to whether he was qualified to deliver in this area.

I find both parties have submitted their reasons and supporting arguments as to whether or not the claimant was suitable qualified to fill the position he was asked to do. I find this matter would have been best dealt with through the respondent’s internal policies and procedures.

I find the burden of proof in this case does predominately rest on the shoulders of the claimant.

I find in making my decision I am guided by previous rulings and decisions.

Decision:

.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 of constructive dismissal fails .

Dated:   10 November 2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell