ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00003931

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00005754-001 10/07/2016    Date of Adjudication Hearing: 14/03/2017 Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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:

  The respondent employed the complainant as an estimator/advisor from 4th of May 2015 until the 30th of June 2016. He was paid €1,546.35 gross per month and he worked 39 hours per week. The parties made written and oral submission to the hearing.

Summary of Complainant’s Case:

  The complainant submits that having resumed working for the respondent in May 2015 and having agreed that he would be employed in his former position as estimator/advisor matters changed after about one week. The store manager was reassigned to cover a maternity leave and the assistant store manager was required to act up. His position remained unchanged although there was a significant change made in his duties and responsibilities. The store was now being run by three employees as opposed to two employees hitherto. He approached the area manager with a request that he be appointed to the position of assistant manager who advised that he would “see what he could do”. He continued with this unsatisfactory situation for some months at which point he approached the area manager again to be told the same thing. He e-mailed the area manager prior to Christmas and was advised that the respondent as a matter of policy had ceased employing assistant managers in stores with less than €1M annual turnover. The complainant pointed out that he thought that this was grossly unfair and stated that he would be left with no alternative but to seek alternative employment. In March of 2016 he was invited to attend an interview for a new job and requested that he be allowed a day off to attend. This was reluctantly granted on the basis that he would change his day off. During the discussion concerning the job interview with the regional manager the complainant had expressed the view that he was being treated unfairly and that he should not be required to work in the store alone because of his pay rate and the health and safety implications. The complainant suspects that “somehow the regional manager appeared to take this as a refusal to work by myself and initiated a disciplinary procedure”. The administration supervisor was then dispatched to the store with a list of questions which the complainant was required to answer. Later the he returned with another list of questions. The complainant felt at this point that he was being bullied by the regional manager and took a grievance against him. The grievance was deemed to be unfounded and the ensuing appeal failed. The process was conducted through conference call but the complainant was not provided with the notes thereof. He was misquoted on two occasions to suit the conclusion reached. Thereafter he was asked to attend a disciplinary hearing which were noted and I was asked to sign them. He states that he was misquoted and ultimately sanctioned by way of first written warning for failing to carry out a reasonable management request. He appealed the decision which has been ignored to date. He was left with no alternative but to leave. He was offered a job at some remove from his home but felt he had to accept it.  

Summary of Respondent’s Case:

  The respondent submits that the complainant was not constructively dismissed but that he resigned his position based on the unavailability of promotional positions in early 2016. Furthermore, at the point of resignation the complainant had appealed a disciplinary sanction (first written warning), having submitted a detailed written submission. The sanction was notified by letter of 8th of June, 2016 advising of the right of appeal and the appeal was received on the 19th inst. The complainant submitted a letter of resignation (24th inst.) almost immediately thereafter.                                       Interim changes were made to accommodate the maternity leave of the regional administrative supervisor on or around the time the complainant took up the employment. It was made clear that these changes were of a temporary nature to all. The complainant was of the belief that he had to take up additional duties and approached the regional manager to seek a pay increase. At a later stage, he sought promotion to assistant manager who assured him that he would make the relevant enquiries in the matter. He was never informed that he would be given that position. The regional manager responded in mid-December to the effect that he would not qualify for a promotion as it was the company policy to provide assistant managers in stores with annual turnover greater than €1M only. The complainant responded by stating that he would have to seek employment elsewhere. During the week of 3rd of February 2016 the complainant telephoned the regional manager requesting a day off to attend an interview. Additionally, he noted that cover would be needed from another store as he could not work alone. The regional manager understood this to mean that the complainant was refusing to work alone in the store during the store manager’s annual leave on that week. He made the necessary arrangements at considerable cost. An investigation into these matters was conducted by the respondent leading ultimately to a disciplinary sanction.                                                                                                                                         The complainant raised a grievance on the 8th of March 2016 in which he complained of increased duties to the level of assistant manager undermining his capacity to earn commission and that he was subject to investigation concerning his alleged refusal to carry out work which he strongly denied. He was informed by letter of the 30th inst. that his grievance was not upheld, that he had a right of appeal and that additional resource (part-time sales assistant) would be deployed at the store. His subsequent appeal failed.                                                                                                                On completion of the grievance procedure a disciplinary hearing was conducted with due regard to his rights at natural justice. He received a first written warning on the 8th of June. He appealed the warning and resigned 5 days later.                                                                                                                  The respondent denies that complainant was left with no alternative in all the circumstances and that his resignation arose from the issue of the warning. Nor did the respondent act unreasonably in utilising the disciplinary procedure.      

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of 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.  

UD - s. 1. - [(1)] (c) (b) of the Actprovides - that dismissal, in relation to an employee, means - The termination by the employee of his/her 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 constructive dismissal cases the claimant must satisfactorily demonstrate that the respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for him/her to continue in the employment and which fundamentally breached his/her trust and confidence in the bona fides of the other party. In so doing the claimant must also show that his/her action/behaviour in resigning his/her position was reasonable in all the circumstances (mirror image concept). The claimant has not succeeded in doing so in the instant case.   Therefore, I find that the herein complaint is not well founded.       Dated:   16/02/2018 Workplace Relations Commission Adjudication Officer: Michael Hayes