ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002730
Parties:
| Complainant | Respondent |
Parties | Peter Dzvonik |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00005570-001 | 11/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00003780-001 | 11/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 |
CA-00003780-003 | 11/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 |
CA-00003781-001 | 11/04/2016 |
Date of Adjudication Hearing: 10/08/2017
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant was employed as a Retail Sales Assistant between 2011 and the termination of his employment on January 29th 2016. It is the nature and circumstances of that termination which has given rise to three of the complaints.
The fourth concerns wages allegedly not paid in respect of four days at the end of December 2015. |
Summary of Complainant’s Case:
The complainant was told by his employer in the days before Christmas 2015 that the retail outlet in which he worked in both county Wicklow, which was one of a number operated by the respondent was to close. He had been aware that turnover in the outlet had been falling as a result of competitive challenges.
The closure was confirmed on December 24th and the complainant was offered alternative employment approximately twenty five kilometres away on the West of the city. He did not immediately give his response to the offer but did say that he would accept it on a trial basis. He did raise with the respondent why he was not making him redundant.
He pointed out the additional costs (which he stated as being €50 per week) and travel time, and the fact that the working hours proposed would not suit his family arrangements, in that there was a let opening shift.
The respondent offered to pay him a ‘disturbance allowance’ of €1600, aimed at allowing him to improve his vehicle and also to raise his wage by €1 per hour, or €40 per week.
He did in fact attend at the alternative premises for the month of January but submitted a forma grievance on January 14th and itemised the difficulties referred to in the proposed transfer.
He also referred to the fact that he had not been paid for the four day period in December after the Christmas break. His view was that the shop was open and trading on those days.
The respondent did not reply until January 22nd, 2016. In the course of this letter the respondent asserted that he had not been made redundant.
The complainant did not return to work after January 28th and engaged a solicitor who wrote to the respondent on February 1st and 12th, and getting no satisfactory response he resigned on February 19th 2016. He felt (on the basis of advice received) that if he had continued to acquiesce in the transfer that tis would have undermined his grievance. Regarding the complaint under the Equality Acts the complainant says that the respondent took advantage of his acceptance of a demotion in 2012; feeling that this was because of his nationality and that he could proceed with the transfer in the knowledge that the complainant would acquiesce again. The respondent knew that an Irish person would not be as readily accepting of the change proposed. |
Summary of Respondent’s Case:
The respondent says in respect of the end of January period that the shop was not trading and staff were working to wind it down. The complainant was considered to have been on leave.
The respondent was unhappy with having to defend two quite different complaints o the same set of facts.
In relation to the constructive dismissal the complainant resigned less than two weeks after the letter had been received and that therefore he had failed to exhaust the internal
Regarding the complaint under the Redundancy Payments Acts the respondent submits that the offer of alternative employment was reasonable and, for example, well within the range foreseen in the Public Service agreement (Haddington Road’) before a redundancy will be contemplated. In respect of the Payment of Wages complaint the respondent undertook to investigate the position and make any payments which were outstanding (and did so). |
Findings and Conclusions:
While this case did give rise to an element of technical, procedural difficulty it is not difficult to see that the simple starting point is that a redundancy situation existed. The premises in which the complainant worked were closing and there was to be no further work there.
Redundancy Complaint CA-00003781-001
To say that this was badly handled by the respondent would be an understatement.
While the complainant acknowledged the downturn in business it is clear that the first informal approach to him and his colleagues was a matter of only a few days before it closed on December 24th.
I accept that the period in which the business opened after Christmas was primarily, if not exclusively for the purpose claimed by the respondent, although this does not explain why he was not rostered to work those days, and much less why he was not paid for them. The claim made in the letter of January 22nd that it was because he had not worked them is, to put it mildly, disingenuous.
The complainant was put under pressure to accept a significant change in his working arrangements and, understandably, took some time to agree to do so on a trial basis.
The explanation offered by the respondent for the delay in responding to his grievance was not credible given the content of the grievance. Had he entered into a proper process of consultation with his employees prior to the proposed closure there would have been adequate time to consider all these options.
Seeking to excuse the delay in dealing in responding to the complainant, and even going so far as to challenge whether it actually represented a grievance compounded the original failings in the management of the redundancy process.
Constructive Dismissal; Complaint CA-00003780-001
The complaint is one of constructive dismissal. The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract. In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings. It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise. When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter. In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340 There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employers grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints The Supreme Court has said that; ‘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.’ Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61 In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment. In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery. In this case the complainant did not dispute that she had been given a copy of the grievance procedure. Looked at by reference to either of the above tests the complainant come nowhere close to the burden of proof necessary to ground her case. The explanation provided by the employer for the downturn in its business in January was persuasive and self evident. The complainant was not treated in any materially different way to the other employees. However, her peremptory resignation without reference to the company procedures is fatal to her case on these facts. The EAT has made it clear in a series of decisions, and followed by the Adjudication service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above. In Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268 ‘The Tribunal finds that the claimant do not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her. And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated; For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However for a period of six months she did not attempt to resolve the issue. In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed. Even by applying the ‘Berber’ test to the respondent’s conduct alone the complainant would fail. Her failure to avail of internal procedures to even establish what her future pattern of work might be, much less complaint about what had happened renders the complaint devoid of any merit.
Discrimination; Complaint CA-00003780-003
I find that the complainant has not made out a prima facie case under the Employment Equality Acts. This was a flimsy complaint in which no evidence of less favourable treatment on the grounds of race could be identified.
It is insufficient to simply be a member of a protected category in the absence of some very basic evidence of less favourable treatment.
There was only a very fanciful hypothesis based on the complainant’s actions in 2012 allegedly informing the respondent’s actions in December 2015.
Likewise, no act of penalisation as required by the Act was identified and these complaints fail.
Payment of Wages Complaint CA0000-5570-001
Subsequent to the hearing the respondent provided evidence of making the due payment to the complainant.
Summary
I find that the complaint under the Redundancy Payments Acts succeeds.
The complainant was clearly made redundant and I find that the offer of alternative employment was not suitable, and that the manner in which it was offered contributed to this.
The purpose of a period of consultation is not simply to comply with some theoretical best practise; it is to allow parties in a difficult situation such as a redundancy to work out mutually acceptable terms for their future relationship.
It might have been open to the respondent to negotiate with the complainant and tailor the position in such a way as to make it suitable but the respondent’s failure to engage in a meaningful period of prior consultation ensured that this did not happen, and this was compounded by his tardy response to the grievance. In the circumstances it was reasonable for the complainant to decline it as being unsuitable on the grounds of the additional costs, extra time commitment and impact on his family arrangements. (it was stated at the hearing that these arrangements were open to discussion, but the time to have done so was in December 2015, well in advance of the actual redundancy. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
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.
I uphold Complaint CA-00003781-001 and award the complainant redundancy payments in line with the provisions of the Redundancy Payments Act 1967 based on his service from March 22nd 2010 to March 29th 2016, and subject to his having been in insurable employment for that duration. I do not uphold complaints CA-00003780-001 and 003. Complaint CA-000057770-001 falls as the payment of wages was made. |
Dated: 11th September 2017
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