Complainant

Respondent

Anonymised Parties

A Solicitor

A Solicitor’s Practice

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00009533-001

03/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00009533-002

03/02/2017

This matter comes before the Adjudication Services on foot of a workplace relations complaint form dated the 3rd of February 2017 and has been initiated in consequence of the Respondent Employer’s decision to terminate the Complainant’s employment which said decision was communicated to him by his Employer in or about July or August of 2016.

The Complainant had been engaged with the Respondent Solicitor on the basis of being a Trainee Solicitor since 2013. It is common case that the Complainant’s Deed of Legal Indenture expired on the 16^th of April 2016 and it is accepted that in the ordinary course it was open to the Respondent to lawfully terminate the employment at this point in time as the relationship had been brought to a Contractual and foreseeable end.

There is no doubt that the Complainant and the Senior to whom he had been Indentured (Mr. TK) had a discussion on or before the April date and in the course of this discussion it was made clear to the Complainant that there was no Full Time position available at that time and that there would have to be a parting of the ways.

Both parties agreed that the Complainant would not be forced to leave on the expiration of the Traineeship and that he would be welcome to stay on (albeit on the same Traineeship salary) until such time as the Complainant secured alternative appointment. I find as a matter of fact that no time limit was put on the length of time it was expected would be required for the Complainant to secure alternative employment. Mr. TK gave evidence to the effect that he just believed that it would be easier on the Complainant to find a position from a position. He had allowed other Apprentices to depart under these circumstances in the past.

It is common case that the Complainant had had a relatively issue-free preceding three years and that there was a good working relationship between them by the time the Complainant became a fully qualified Solicitor in April 2016.

In July of 2016 an incident occurred which set a series of events in train which has ultimately brought the parties before the WRC. On the 1^st of July 2016 the Complainant was chastised by another member of staff (MsBE) for, inter alia,   his intending to eat food at his desk. The Complainant denies that he was in any way rude to Ms. BE but the upshot of the interaction between these two members of staff was a remark made by Ms. BE that the Complainant would be requiring a Reference from the firm, and I accept that the clear implication of what was said was the Ms. BE might have some influence over the content of any proposed Reference that the Complainant might be requiring when leaving the firm which departure was of course thought to be imminent as all parties knew that the Complainant’s ongoing tenure was on the basis of his looking for alternative work.

To her credit, and in the course of the hearing before the Adjudication Services, MsBE (through her representation) indicated her regret at using such and ill-advised and unfortunate language. It was not appropriate for an established Solicitor and member of staff to imply that she could negatively impact on the Reference of a recently qualified subordinate whose future outside the four walls of the Firm was uncertain.

There followed a number of emails from the Complainant to MsBE which when read objectively and after the event, can only be described as overly dramatic with allegations such as fraud and of malice and of vindictiveness and deviousness and of reputational damage and career sabotage   and of being threatened, all of which are scattered through the correspondence.

There followed a meeting between the Complainant and Mr. TK on the 8^th of July at which the incident and the purported threat were discussed. It is clear that the Mr. TK had at that time discussed the incident with Ms.BE and was filled in on a little of the background of why Ms. BE had initially chastised the Complainant (i.e. ongoing breaches of the house rule regarding eating food at workstations). In the course of this meeting, Mr.TK attempted to assuage the Complainant’s concerns regarding the issue of a potential Reference by reassuring him that he alone would be responsible for drafting a Reference and that Ms.BE would have no part in that process. Mr. TK further confirmed that he had had no disciplinary difficulty with the Complainant in the three or more years of his time with the Firm and that any reference would reflect that fact.

It is noted, that at this very same meeting, the Complainant’s future with the firm of Solicitors was put on a countdown by Mr. TK. Whilst Mr. TK states that this was because there was always an understanding that the current arrangements could not go on indefinitely, it is not surprising to me that the Complainant could have linked in his mind the row with a Solicitor in the firm (BE) with his being given Notice that his employment was going to terminate within 8 weeks on the 31^st of August. That said, the Complainant says that he does not recall this termination date being given at that time.

I acknowledge that Mr. TK was surprised to learn that in the three month period since April 2016 the Complainant had not made any attempts to look for alternative employment in the legal or any other field and that he needed the Complainant to understand that he had not created some sort of quasi permanent position when he had suggested that it would be in ease of the Complainant to look for a job from a job.

As it happens MrTK left to go on holidays for a few weeks after the 8^th of July and returned to the workplace and to a further email from the Complainant dated the 26^th of July 2016 wherein the Complainant expresses his dissatisfaction with the way in which the issue has been handled and in particular for not seeing that there had been a threat made to his professional career and requiring the matter be fully investigated so as to protect his own professional reputation.

It is certainly worth noting that the Complainant states in his submissions and later correspondence that he had no inkling that his position was due to be terminated at the end of August until after he had sent out the letter of July 26^th i.e. he does not recall it being said nor does he agree with the contention that Mr. TK made this clear to him at the meeting of July 8^th 2016.

MrTK wrote an email to the Complainant on the 4^th of August 2016 outlining his recollection of the meeting on July 8^th including referring to the fact that his reference would be drawn up by him alone and he also had indicated that the current arrangement would end at the end of August. MR TK indicated that he would not be conducting an investigation into the behaviour of Ms.BE as he believed all matters there to have been resolved – thereby failing to see that a legitimate Complaint, concerning the appropriateness of a senior employee raising fears in another junior employee over his future within the industry, should actually have merited an investigation.

MsBE herself has acknowledged the inappropriateness of this remark before this Forum.

Surprisingly and for reasons not clearly understood, Mr. TK opted to go for the nuclear option and terminate the Complainant’s employment later on that very same day. Without further ado the Complainant was invited to leave the premises and was paid up to the end of the month. There is a one month Notice requirement set out in the Contract of Employment.

The Complainant’s case (apparently teased out in the course of the hearing) is that he was not of the view that there was a time limit imposed on his having to look for alternative employment. The parties had simply agreed that he would look for a job from a job and that as he was working with the skillset of a qualified Solicitor on a Trainee rate that the Employer had to find the situation to their advantage.

In his mind, the termination of his employment and the incident between himself and MsBE were inextricably linked. Once he vocalised his reaction to what had been implied by BE he believed the firm moved in to protect one of it’s own.

The Respondent has invited me to consider the nature of the Contract of Employment entered into post April 2016 which was they state a Contract of fixed purpose – the purpose being to allow the Complainant an opportunity to seek employment whilst still able to draw down a salary and in recognition of the fact that the optics of looking for a job whilst being in a job are simply better. There is no doubt that when or how that purpose should be reached was not detailed and it is the Respondent’s case, as I understand it, that on discovering that no effort had been made to secure alternative employment between the 16^th of April and the 8^th of July, the Respondent was entitled to terminate the Contract of Employment. This was by reason of the abject failure on the complainant’s part to initiate any action which might be seen as a willingness to realise the purpose.

I have given a lot of thought to the evidence raised in this matter together with the documentation relied upon by the parties. I fully accept that an unpleasant scene occurred in this workplace on the 1^st of July 2016. Neither protagonist comes out of that row particularly well. MsBE pulled rank in an unacceptable way whilst the Complainant went into an overly dramatic overdrive which was disproportionate to any realistic fear he could have had regarding the damage MsBE could actually have on his future.

I have to accept that the Complainant knew he was on borrowed time in this office as the reasons given for allowing him stay on post his qualification were made abundantly clear to him. This was, it seems to me, why he was so sensitive to the issue of his reference.

I would surmise that had there not been this incident and ensuing row the Employee would not have challenged his Employer putting a time limit on the time being allowed to look for alternative employment in circumstances where absolutely no effort had been made to look for a job when this fact was discovered. The parties knew that this was the clear reason why this extended Contract had been designed. In this regard, I accept that in the ordinary course this was a fixed purpose Contract designed to last a limited amount of time but not designed to be terminated unfairly or on a whim.

On balance, I cannot ignore the fact that the office row and the termination have become caught up together and I have to accept that MrTK, who was a good mentor to the Complainant, opted for the easier option of letting the Complainant go rather than investigate the matter raised. And I should state here that it is quite obvious that a series of Counter–complaints regarding the Complainant’s attitude and behaviour in the office were potentially waiting in the wings and the Employer was possibly faced with   a long and protracted internal   row. I do not know if that was a part of the Employer’s reasoning in terminating the Employment as he did but I cannot overlook the “kneejerk” reaction of calling the Complainant into the office on the 4^th of August and sending him home for the balance of the month and indeed for good.

It is not clear to me that the Complainant realised when sending the email of the 26^th of July demanding an investigation that he was aware that in the Employer’s mind the relationship was bound to finish at the end of August 2016.

On balance, I therefore find that the Complainant was Unfairly Dismissed. In making this finding I am mindful of the fact that the Complainant has had some part in the manner in which his relationship with the Respondent came to an end. I also acknowledge that the Respondent simply brought forward a date that would have had to have crystallized in the imminent future anyway.