ADJ-00005683

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005683

Parties:

Complaint:

Date of Adjudication Hearing: 3rd May 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 1^st November 2016, the complainant submitted a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was scheduled for adjudication on the 3^rd May 2017. The complainant attended the adjudication in person. IBEC represented the respondent and the Deputy Director of Operations and the HR Manager attended as witnesses.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant worked for the respondent between the 20^th July 2015 and the 28^th August 2016. He was paid €1,900 per fortnight. His role was that of residential social care worker and the respondent is a public service provider. The complainant claims that he was constructively dismissed from his employment and the respondent denies the claim.

Summary of Complainant’s Case:

At the outset of the adjudication, the complainant said that he had a very good relationship with his two former colleagues present at the adjudication. He indicated that he had hoped that this matter would be amenable to mediation. The complainant liked working for the respondent and regretted leaving. He submitted this complaint to have someone independent look at his reasons for leaving his employment. In his new role, he now attends the respondent facility to visit one particular client. He is paid less in the new role and also has a long commute.

The complainant said that he resigned because of the behaviour of colleagues around a promotion competition for the role of unit manager in which he participated. He found it difficult to cope with the fact that his application for the role was disclosed to colleagues. He states that he resigned as the situation became unbearable. Matters came to a head in July 2016 and he applied for an alternative role, not anticipating the long commute. He accommodated the respondent by putting back his resignation to the 28^th August 2016 as the respondent was short-staffed.

The complainant said that the coaching session had taken place on Friday, 3^rd June 2016. The sessions had been scheduled so that no one would know who else was going for the role. At this time, a named colleague informed the complainant that she had received a coaching session and was aware of who else was going for the role, naming two other colleagues. He asked her how she knew and she replied that she had the “inside track”, i.e. another named colleague. It became awkward with this colleague because of the disclosure issue and because of an incident where a client had been able to take a mobile phone. A colleague also said to him that she could not believe that he had applied for the unit manager role, when she should not have known this at all.

The complainant also spoke with another colleague, who was also aware that he had gone for the unit manager role. His immediate reaction had been how did she know and he felt uncomfortable about this. He asked this colleague not to tell everyone and she offered her help. He also sought support from an internal support service, which he had engaged after a period of sick leave.

After he was not successful in obtaining the role, the complainant attended a feedback meeting with the Head of HR and the Deputy Director of Operations. While he had seen the scoring sheets, they were only disclosed to him during the course of this adjudication. Colleagues would have been able to see that he was going to and from a feedback meeting. The complainant raised the disclosure issue at the meeting and asked the Deputy Director of Operations and Head of HR to find out who had made the disclosure. The respondent told him that the disclosure happened because someone had read the list of candidates upside down at the interview, but he did not accept this as colleagues had known before the interview. He had not told anyone he had gone for the role and denied saying publicly that “he was delighted” to get through to the second round. He indicated that the disclosure had not come from the Deputy Director of Operations and he had discussed the role with him.

The complainant said that a named male colleague had approached him after the interview and before he knew that he did not get the role. This colleague shook the complainant’s hand and said “congratulations on becoming management.” Another colleague also shook his hand. The complainant said that he reacted by laughing and walking away. This made the complainant feel under pressure and he contacted the respondent to find out the outcome of his application. After he found out that he was not successful, he felt that he was being laughed at. He raised the issue of “campus gossip” and the false congratulations at the feedback meeting, as well as the fact that he was made to be a laughing stock. He was hurt and unhappy with how the respondent responded to the issues he raised. He started to distance himself and looked for other jobs. He said that in his new role, he continues to work with the two former colleagues who were successful.

In cross-examination, the contents of his email of the 12^th July 2016 were put to the complainant; he replied that the reference to feedback was his response to the colleagues who had approached him.

In reply to the respondent, the complainant said that his reason for leaving was feeling uncomfortable in the respondent workplace. He raised the incident of the 12^th June 2016 as a young person should not have to be lifted. When this occurred, the complainant sought to support the young person from below. He had intervened to support the young person and did not hear anything from the respondent following his report. He described this as the icing on the cake, even if it was now done and dusted. He said that at the meeting of the 12^th July 2016, he referred to the two colleagues who shook his hand, without stating their names. He said that he had submitted a written application for the Diploma course but was told by his line manager that he had to work for the respondent for two years before he could formally apply for this course. He said that two colleagues who started at the same time he did were given support for Masters programmes. The complainant said that his position had become unbearable because he was being talked about and laughed at. He said that the Deputy Director had not been pro-active in disseminating the outcome of the recruitment process and raised this with him on the 12^th July 2016. He delayed his annual leave in order to facilitate the respondent in August. He further stated that he missed the role and now felt happier to stay in the organisation.

Summary of Respondent’s Case:

The respondent outlined that the interview took place on the 1^st July 2016 and the complainant was informed of the outcome on the 12^th July 2016. The respondent outlined that the panel made a recommendation on the day or the day after the interview and this was communicated to the Director. One of the candidates had been on annual leave, leading to further delay. The complainant was dissatisfied with the recruitment process and a second meeting took place the following day. The complainant and the respondent exchanged a series of emails between the 13^th July and the 22^nd August 2016, when the outcome meeting took place. By this stage, the complainant has resigned. His new employer had contacted the respondent on the 3^rd August 2016. The complainant never submitted a grievance.

The respondent submitted that the complainant had given different reasons in his exit interview to the grounds listed in his WRC complaint form, where he states that his employment was unbearable. In the interview, the complainant gave seven issues that influenced his decision to leave, including conflict with colleagues, atmosphere/working environment and another external job. He refers also to better benefits and work-life balance. In the WRC complaint form, the complainant referred to the breach of confidence over the unit manager recruitment process, his wish to pursue a Diploma course and the incident of the 12^th June 2016. The respondent submitted that the disclosure issue was treated as an informal grievance and addressed at the outcome meeting of the 22^nd August 2016.

In reply to the complainant, the respondent submitted that while the complainant refers to his employment as “unbearable”, he now seeks reinstatement. It would be untenable for an employee who described the workplace as unbearable to return in these circumstances. The respondent had investigated the issue raised by the complainant regarding the recruitment process and asked the complainant to reconsider his decision to resign. No grievance had been lodged regarding receiving support for the Diploma course. The issue with the telephone had been dealt with and was closed off.

Findings and Conclusions:

In respect of the claim of unfair dismissal, the definitions section of the Unfair Dismissals Acts (at section 1(b)) provides in relation to the definition of constructive dismissal:

           “dismissal”, in relation to an employee, means—

“(b) 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.”

The classic formulation of the legal test in respect of constructive dismissal was provided by the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: “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 other performance.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In respect of repudiation of contract, the Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test for whether employer conduct had breached the implied term of mutual trust and confidence in every contract of employment was an objective one. Finnegan J. held:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. 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.”

There is a conflict between the parties as to when it became known amongst staff of the respondent who had applied for the role of unit manager. The complainant asserts that this was before the interviews and the respondent states that this information became known during the interview process. Given that this is not a conflict that can readily be resolved, the appropriate first step is to examine whether the claim can succeed on the complainant’s own evidence and whether the complainant can meet the legal test for constructive dismissal in the circumstances of his resignation in August 2016.

It is clear that the complainant was greatly upset and troubled by the disclosure of his candidature for the unit manager post during the recruitment process. It is, of course, of concern that such information became common knowledge or “campus gossip” in the midst of the process. The episode where the complainant was congratulated by two colleagues on getting the role when this was not the case is alarming. However, taking the complainant’s evidence at its height, his complaint does not meet either test of constructive dismissal. While the dissemination of the complainant’s application for the role was far from ideal, it does not amount to a repudiation of his contract of employment. In respect of a breach of the term of mutual trust and confidence, looking at the actions of both the respondent and the complainant, the test in Berber has not been made out. In the absence of a formal grievance from the complainant, the conduct of the employer cannot be held to be so unreasonable or without proper cause. The complainant has not met the reasonableness test because he did not lodge a formal grievance and because of his speedy resignation. Taking these findings together, the complaint made pursuant to the Unfair Dismissals Act does not succeed.

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.

CA-00007922-001

For the reasons outlined above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well-founded and does not succeed.

Dated:   30/8/17

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Unfair Dismissals Acts

Constructive dismissal

Berber v Dunnes Stores [2009] 20 E.L.R. 61