ADJ-00007941

ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00007941

Parties: 

Complaint(s):

Date of Adjudication Hearing: 20/09/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 13 of the Industrial Relations Acts 1969, 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). 

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

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. ( Claim Reference Number CA-00010572-001).

At the Hearing the Complainants case developed into the following areas for the justification of how he was treated unfairly at work and that treatment justified him terminating his employment and claiming constructive dismissal.

In effect, arising from the submissions, the Complainant stated that the following were the areas of mistreatment by the Respondent. Each party were given the opportunity to contribute on these issues after a break in the Hearing.

His second verbal warning

The Handling of his sick certs

The delay in paying his expenses

The changes in control

The third party investigation

Delays in process

Delays in getting his P45

He was humiliated

He was diminished

The changes to his role

The Respondent did not have a Bullying and Harassment procedure.

The Unfair Dismissals Act defines Constructive Dismissal as follows

“(1b) 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”

In a recent EAT decision they elaborated on the grounds which a constructive dismissal claim may succeed as follows:

“The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract. 

“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 further performance”

 If the tribunal is not satisfied that the “contract” test has been proven then it is obliged to consider the “reasonableness” test.

 “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

 When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment.

 The Respondent argued that in addition to satisfying the test set out by Lord Denning in Western Excavation (E.C.C) Ltd the claimant, must also show that she exhausted the internal grievance process prior to lodging her claim with any external body. In that regard they rely on the case of Conway V Ulster Bank Limited UD 474/1981 where in the Tribunal stated:- 

“In writing the letter of resignation, the appellant did not take the steps outlined in the grievance procedure. The Tribunal has long considered that such agreements, usually described as Union Management agreements, are binding on the parties because they chose to be bound by them”.

The Claimant argued that it is not a mandatory requirement to exhaust the internal grievance process prior to commencing proceedings externally. In that regard they relied on the case of An Employee v An Employer 1274/2010 wherein an employee who had not exhausted the internal grievance process nevertheless succeeded in her claim for constructive dismissal.

 It is well established in law that the general rule is that a claimant must exhaust the internal process prior to lodging a claim with any external body. On occasion, and in very limited circumstances, when a claimant can prove, by the production of evidence, that the invoking of a grievance process would be a fruitless exercise the general rule can be displaced.” End of EAT quotation.

I will now deal with the evidence presented and my conclusions to these issues;

While the Complainant cited a delay in getting his P45 as general evidence of the Respondents behaviour towards him, this event was after his resignation and therefore cannot form part of the conclusions.

With regard to the delay in expenses processing the Respondent stated that the Complainants expenses nearly always required checking due to possible errors, his handwriting was ineligible and that he was also the employee with most expenses from a cost perspective.

By submitting the complainants sick certificates the wrong person in the middle of the summer when the School was closed down the Complainant substantially contributed to the delay in getting these processed.

The manner of how the changes to the Complainants role and start time were communicated and discussed with him were disputed at the Hearing. However, the changes outlined were minimal in nature, were on a trial basis and certainly would not be substantial cause to cease a persons employment.

While it is true that the third party investigation of the Complainants grievance was outside of the stated procedures once the third party investigator established this he immediately ceased the investigation so in effect no material evidence was gathered or adverse finding was found against the Complainant.

As the second verbal warning was not proceeded with and was not part of the company disciplinary policy then it does not have real significance to the case.

With regard to whether the Complainant was humiliated and diminished by his Supervisors actions the evidence presented, in detail, by both sides was totally contradictory. The Complainant said he was ignored at meetings, his course qualifications frowned upon, he said he was not being saluted, it was inferred he was only working part time, that his property tax deductions were slow and inaccurate, that he had no job title, that his grievance dated 15/7/2016 was not processed quick enough and outside the procedure, etc. However, in practically ever instance the Respondent denied this or had an alternative view. For example, they stated he would become aggressive at meetings and had to attend anger management and communications courses, when his expenses were typed they would be processed quickly (they that his handwritten ones all were hard to read and had inaccuracies ), that he did not want contact with management, that he wanted to take the time off in the summer (as did most staff), that the delay in processing his grievance was out of concern that he was stressed and that he would be able to deal with the investigation, that he did get a copy of the Terms of Reference, that the delay in the P45 was due to seeing if he was owed money which took some time to clarify, that his job was there for him even after he resigned, etc.

The Respondent cannot be faulted, in a small organisation, for employing an Independent Third Party to complete the investigation when the Complainant himself, employed a well qualified company to represent him in his grievance, a process which the Respondent engaged fully in from seeing the correspondence. However, one key issue is the Complainants resignation letter dated October 14^th 2016. In it he stated “after reading your complaint again I feel that I am very unfairly treated”. This refers to his Supervisors complaint against him. However, in the Hearing this was not the case put forward by the Complainant. It appears he was responding to the fact that the Supervisors had counter submitted a grievance against him after he had submitted a grievance against her.

In order for a case for constructive dismissal to succeed the Complainant has to prove that his contractual situation was severely breached and or that the employer was acting so unreasonably that he could not stay in the employment. Neither of these two tests was successfully passed in this case. No fundamental breach of the Complainants employment situation occurred, any changes were minor in the greater scheme of things, the Respondent attempted to deal with his grievance in a professional manner through an independent third party, his complaints were disputed at the Hearing and no concrete evidence was provided as a lot of the complaints he said affected him were of the “hearsay” nature. The Respondent was also open to him returning to work after he resigned which shows they were operating on “good faith”. It would appear that the two main individuals involved did not see eye to eye from the conflicting evidence. For all the above reasons the Complainants case for Unfair Dismissal due to the actions of the Respondent was not proven to pass the two key tests and the claim fails.

Recommendation

Section 41 of the Workplace Relations Act 2015 requires that I make a recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Reference Number CA-00010572-002.

This claim was not specifically discussed at the Hearing as it overlapped substantially with the claim for Unfair Dismissal (see above in detail). The key elements of the Industrial Relations claim were that the Complainants grievance was not treated in accordance with the Company Grievance policy regarding time, the use of a Third Party to investigate the claim, that he was bullied by his Supervisor and that the Respondent did not have a Bullying and Harassment procedure. While it is correct to say that the Respondent did not have a Bullying and Harassment procedure they did have a Grievance procedure and attempted to deal with the Complainants case both independently and professionally through this process. Any delay in acting on the claim was due primarily to the school being on holiday for two months. Any evidence of bullying provided by the Complainant to support the claim of bullying was countered by opposite arguments by the Respondent. For these reasons, I see no need, from an Industrial Relations perspective, to consider any other recommendation than for the Respondent to consider devising a Bullying and Harassment procedure for the future.

Dated:   20 November 2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words: