Complainant

Respondent

Anonymised Parties

General Operative

Amusement Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014556-001

27/09/2017

The respondent operates a company providing amusement facilities in a number of locations.   The complainant commenced employment in December 2011 working on a part-time basis and earning €222.40 per week.   The complainant’s employment terminated on 27 April 2017 following a meeting in relation to alleged shortfalls in revenue collected by the complainant for the respondent.

The complainant was requested to attend at the respondent’s main operations centre and agreed even though he was not rostered to work on that day.

Two members of management directed him to board a boat with them and another person and then went out to sea for a considerable distance.

The complainant was accused of stealing money from the respondent and verbally abused for about 40 minutes.

When they eventually arrived back on shore he was brought to an office and obliged to sign a letter of resignation.

The complainant was not dismissed but resigned.

The respondent had become concerned in relation to discrepancies in respect of revenue returns for which the complainant had responsibility.

The respondent’s management met with the complainant in this regard. The complainant refused to discuss the matter but stated that he wished to resign as the company had no trust in him.

As the complainant repeatedly stated that he wished to resign the respondent accepted his resignation.

There is a major conflict of evidence as to whether the complainant resigned voluntarily or was forced to sign a resignation letter.

The complainant was employed at one of the locations in a shopping centre in which the respondent operated. The complainant worked there 3 days a week since 2011 and stated that at first there was a good working relationship between him and management. On the evening of 26 April 2017 he received a text from the Director asking him to be at the respondent’s main business location at 8am the following day. He agreed to this even though he had not been rostered to work that day.

According to the respondent when he arrived at the location he was met by a co-worker (his line manager) in a van and the Director was also present. The complainant was asked to go to the nearby harbour where they met up with another man who was not an employee of the respondent. The four people boarded a speedboat and the Director handed the complainant a lifejacket and requested that he hand over his phone for safekeeping. The boat then proceeded to sea for what the complainant described as a considerable distance. The boat then stopped and was tied to a buoy. The complainant said that all three people began to question him in relation to allegations that he was stealing money from the respondent. The Director was aggressive in his language and reference was made to the fact that he would not be able to reach land by swimming because of the coldness of the water. An amount of €10,000 was mentioned at one stage as regards money stolen. The complainant stated that he denied taking any money and that he was scared and cold during the questioning that continued for about one hour. At that stage a helicopter appeared and hovered in the area. The boat was untied and made its way back to the harbour while the questions continued. The complainant asked the Director for the return of his phone but the Director refused. When they returned to the workplace the complainant was told that he would have to resign. A meeting took place with the HR Manager who produced a typed resignation letter which the complainant signed. The complainant said that he had subsequently made a complaint to the Gardai but that no criminal prosecution had followed.

The Director said in evidence that he had requested that the complainant attend at the main workplace to assist in getting it ready for the season. The day was very pleasant weatherwise and he decided to take his boat out for a trip and to invite staff to go with him. Only two members of staff decided to go and they were joined at the harbour by a business associate who had been due to meet with him and who he also invited on the trip. The Director advised the complainant to put his phone in a secure place to keep it safe. The boat went out for about 2.6 miles to a marker buoy and then returned slowly to the harbour as there was a problem with the engine. The Director recalled seeing what he believed was a Coast Guard helicopter in the area. The party then returned to the workplace and the complainant went on a break.   The director then decided to have a meeting with the complainant regarding concerns that had arisen in relation to customer numbers using the facility for which the complainant was responsible. The purpose of the meeting, which was informal, was to see if the complainant could assist in identifying reasons for the decline in numbers. The complainant, however, refused to answer questions stating that if the respondent did not trust him then he would resign. After a time the Director went and asked the HR Manager to join the meeting and again the complainant repeated his wish to resign. The HR Manager eventually drew up a resignation letter that was signed by the complainant. All monies due to the complainant were forwarded to him without delay.

The resignation letter signed by the complainant reads as follows:

27 April 2017

Dear (Director),

I refer to our conversation this morning and wish to confirm my decision to resign with immediate effect.

Yours sincerely,

(Complainant)

If, as argued by the respondent, the complainant voluntarily resigned then there was no dismissal within the meaning of the Unfair Dismissal Acts, 1977 – 2015.   The complainant’s case is that he was subjected to physical and mental stress, was verbally abused and that he was forced to resign under duress. I note that the complainant was obliging the respondent in attending the main workplace on a non-working day in order to assist in preparing the premises for the upcoming season. The Director, in evidence, stated that it was envisaged that the complainant would be assisting a colleague in this regard. The Director also stated, however, that there had been concern at the returns lodged by the complainant in respect of his normal employment, that an outside agency had been engaged to monitor customer flow at that location and that the report received in this regard had raised queries in relation to discrepancies between the agency’s customer figures and those submitted by the complainant. I believe that the real purpose of the complainant’s attendance at the head office that day was to address that issue. This is confirmed in a statement furnished by the HR Manager which says: “Our MD, our Operations Manager and I met with (the complainant) on 27 April 2017.   Our plan was to discuss concerns that we had in relation to discrepancies in relation to (customers) the previous weekend.”

That being the case, the story of inviting the complainant to participate in a boat trip, decided upon at short notice because it was a nice morning, simply does not ring true.   We are also asked to believe that the Director’s business associate, who according to the evidence had driven some distance for an 8.30am appointment, was given a choice of joining this spontaneous staff trip or waiting around until the Director returned.  And there is the issue of the complainant being the only “ordinary” member of staff who actually went on the trip. In all these circumstances I have to say that I prefer the complainant’s account to that of the Director.

It is clear that the purpose of the exercise was to frighten the complainant and this had been successfully achieved. The further purpose would appear to have been to get the complainant to resign.   When the HR Manager joined the meeting she was informed by the Director that the complainant had expressed his intention to resign. The complainant confirmed this and this forestalled any formal discussion on the reported discrepancies. The HR Manager produced the resignation letter which was signed by the complainant.   I note that the respondent organised a Postal Money Order later that day for outstanding wages due to the respondent and sent it to him. The respondent returned that Order when he received it together with a handwritten note saying that he would not take the cheque and going on to state: “What you planned and did to me last Thursday morning was unforgiveable. I have been a loyal committed employee for years. I can’t understand why! Why did you do what you did.” I take this as confirmation that the complainant had been extremely upset by the events of that day.

Based on the evidence before me I have decided that, on the balance of probabilities, the resignation of the complainant was brought about by duress due to the actions of the respondent.

The Unfair Dismissals Act, 1977, defines constructive dismissal as:

The termination by the employee of his contract of employment with the 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 UD1775/2010 the EAT stated:

“The reasonableness test asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving.”

In the case before me the proper course of action for the employer would have been to write to the complainant telling him of the concerns that had arisen, giving notice of an investigatory meeting in this regard and advising him of his right of representation, etc. The course of action that was taken was, in my opinion, a course of action that was so unreasonable as to justify the complainant terminating his employment.   It therefore follows that the complainant was constructively dismissed and that the termination of the complainant’s employment was an unfair dismissal.

The complainant had indicated that compensation was the preferred form of redress. Section 7(1)(c) of the Unfair Dismissals Act, 1977, in dealing with compensation and what an adjudication officer may determine, states:

(i)                  If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all of the circumstances, or

(ii)                If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all of the circumstances.

The complainant gave evidence that he has been certified as being unfit for work since the time of the termination of his employment and has been€ in receipt of disability payments from Social Welfare. As the complainant is and has been unavailable for work he consequently has to be deemed as not suffering any financial loss. Compensation will therefore be calculated as per Section 7(1)(c)(ii) above.

For the reasons outlined above, I find that complaint is well founded and that the complainant was unfairly dismissed. I order the respondent to pay to the complainant the sum of €889.60 as compensation in this regard.