ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007564
Parties:
| Complainant | Respondent |
Anonymised Parties | A Store Manager | A Large Store |
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. (withdrawn on the first day of hearing) | CA-00010182-001 | 13/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00010182-002 | 13/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00010182-003 | 13/03/2017 |
Date of Adjudication Hearing: 5 September, 8 November, 2017 and 10 January, 2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, Section 27 of the Organisation of Working Time Act, 1997 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint and to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.
Background:
The Complainant worked as a Store Manager on a variable hour’s basis from 14 August 2014 to 18 October, 2016.He was paid €273.32 gross per week. At the outset of the case, the complainant was represented by Counsel and while the claim under the Payment of Wages Act was opened, it was subsequently withdrawn on the first day of hearing. This resulted in the remaining cases being live and being heard under The Organisation of Working Time Act 1997 The Industrial Relations Act, 1969 (Constructive Dismissal) In preparation for the hearing scheduled for November 8, 2017. I requested the parties to make written submissions on the claim for rest periods. When the case resumed on November 8, 2017, Counsel for the Complainant pointed to a discrepancy on the complaint form which had caused the complaint to be processed under the Industrial Relations Act rather than the Unfair Dismissals Acts. She sought that this be amended to allow the complaint to run under Section 8 of the Unfair Dismissals Act 1977-2017 as intended. I heard both parties on this and examined the copy of the complaint form pro-offered at hearing. It seemed at first glance that a mistake had occurred, which excluded the reference to a Claim for constructive dismissal where 12 months’ service had been achieved. I adjourned the hearing with a view to resuming the case under the Unfair Dismissals Act and immediately initiated an administrative search for the foundation complaint lodged on 13 March 2017. I sought submissions from the parties in that vein. The Respondent made a firm objection to this approach. I requested that the parties await the outcome of the administrative search for the foundation complaint form. On 20 December, 2017, the Complainants legal team sought a confirmation of the planned hearing on January 10 ,2018 .The Legal team then came off record as notified by the complainant dated 4 January , 2018 .By that time , the WRC had completed an extensive administrative search and confirmed that the Complaint form proffered on November 8, 2017 was not a match for the complaint received on 13 March 2017.I informed the parties that I would complete the claim for Unfair Dismissal ( constructive ) under the Industrial Relations Act and this was accepted by both parties . I proceeded with the case in that vein.
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Summary of Complainant’s Case:
CA-00010182-002 Rest breaks The Complainant submitted that during his employment ,14 August 2014 to 18 October, 2016 , he was not afforded adequate rest periods. He was afforded an opportunity to take the requisite half hour break upon completion of a period of six hours’ work, but was unable to leave the shop due to his managerial status. The Complainant outlined the claim under Section 3 of S. I No 57/1998 Organisation of Working Time (Breaks at work for Shop employees) Regulations, 1998.The Complainants representative submitted that the complainant regularly worked between the hours of 11.30 am and 2.30 pm and argued that the complainant was not on proper notice of his entitlement to an hour rest period. He sought the remedy of compensation. The Complainant contended that the Respondent had not maintained the statutory records of these breaks taken as provided for under Section 25 of the Act. The Complainant contended that the Respondent was not able to prove that an hour break had been provided to the complainant for hours worked more than six hours during the hours of 11.30 am -2.30pm, which constituted a contravention of the Act.
CA-00010182-003 Industrial Relations Act The Claimant worked as a Store Manager over a period of 2 years and 2 months before his involuntary resignation on 18 October 2016. He is claiming unfair dismissal under the IR Acts. The Claimant loved his work and looked forward to a positive working career complete with upward progression with his employer. He received positive reviews and excellent customer endorsements. Following submission of a complaint against him in March 2016, the claimant agreed to transfer to another store to allow for a period of 10 weeks to resolve the issue. Some 17-18 weeks followed without a resolution. The Complainant participated in a workplace investigation into the complaint This was a protracted process which led to an increase in his stress levels. The Investigation Report issued in July 2016 and upheld one complaint made. The Investigator, who was the company Human Resource Manager, found: “No evidence of repeated inappropriate behaviour ……which could reasonably be defined as workplace bullying.” The Investigator then referred to a finding on one affront to dignity at work in terms of a conversation between one of the complainant’s witnesses and the claimant in this case. The Claimant took issue with this and on July 13 the sought to appeal this finding. The Claimant did not settle well in the shop where he transferred on a temporary basis. He found himself targeted for negative criticism and began to suffer further stress to the point where he became physically unable to open the store on 30 September, 2016. The Claimant expanded on several instances which caused him to feel isolated and threatened at work, both by customers and his Manager. He felt that he was being unfairly targeted without being given a chance to explain. He sought to realise Health and Safety concerns on behalf of the staff and refused to sign the Safety statement. The Claimant suffered a period of Medically certified sick leave from 3-28 October 2016. Such was the level of his stress, he felt incapable of engaging with the grievance procedure. He felt unable to deal with the Individual at the transferred store who was causing him stress. The Claimant submitted that he felt compelled to resign his position when the issue of the March 2016 complaint remained unresolved. He had anticipated a Mediation process but nothing happened. He had to take a period of 4 to 5 weeks’ unpaid time off. His Doctor had advised him to address the situation but he had formed the view that the company was not interested in him. He was left with a strong sense of injustice and believed that he had not been cleared at the investigation and had sought to influence a revision of the one finding against him. Running in parallel to this were the negative experiences at the transferred store where he had also been assaulted by a customer and not taken seriously. However, he felt most aggrieved at having to move stores, where he lost income and had his days reduced. He was told that he was incapable of looking after the store. The Claimant explained that he was unhappy that he felt forced to resign and saw no reason to resile from this position when the Employer approached him to reconsider his resignation. He had subsequently sought out a Senior Manager to address his concerns surrounding constructive dismissal but there was no response or engagement. The Claimant sought to be understood on how the Employers distance from him in the case of the Investigation and the negative approach adopted by the Manager of the transferred store towards him had an overwhelming effect on him, causing him to eventually resign in a last straw action. He believed that he had activated the grievance procedure but was not heard. The claimant submitted that he now worked as a driver in receipt of 160 euro per week, guaranteed income. He had found work some two weeks following his resignation. He was self-employed for a period as a Dog groomer in April 2017. |
Summary of Respondent’s Case:
CA-00010182-002 The Respondent disputed the claim. The Respondent submitted that the question of rest breaks had never been raised by the complainant during his work. he Complainant had not responded to a reasonable request to particularise his claim in terms of dates of alleged infringement. the Complainant had signed time sheets which validated breaks from August 2016, following a WRC Inspection. The cognisable period of the claim covered 13 September, 2016 to 13 March 2017 was not accompanied by a statement of concern regarding the complainants rest breaks. the Complainant had communicated with the Human Resource Manager on January 20th ,2017 where he had outlined his grievances exclusive of rest breaks. The Respondent outlined that staff breaks were scheduled between 12pm and 3pm and were in Team 1 and 2 formation. A canteen was provided for staff use. The Respondent pointed to a lack of credibility in the complainant’s submission where considering, his familiarity with the company grievance procedure, he was in fact silent on this aspect of the claim during the entire duration of his employment, inclusive of the period prior to making a complaint to the WRC on 13 March 2017. CA-00010182-003 The Employer disputed the claim and saw no reason for the claimant to resign on an involuntarily basis. The Employer had made a series of submissions seeking the context and detail for the claim for Unfair Dismissal under the Industrial Relations Act. As stated at the outset, the Employer rejected the claimant’s entitlement to advance the claim under the Unfair Dismissals Acts 1977-2017. The Employer gave an outline that the claimant was doing very well at the company. The company saw him as a rising star and he was very well regarded. His knowledge transferred very well to Demonstration days. The Employer received a complaint under the company Dignity at work policy in March 2016, where the complainant, a co-worker sought an investigation. Terms of Reference were agreed and as a precautionary measure, the claimant transferred to a nearby store. The Investigation lasted longer than the 10 weeks anticipated and the Investigator apologised. the Investigation report issued in July 2016 and the complaints were not upheld outside one finding which was identified as an affront to Dignity at work. The claimant lodged an appeal. The scheduling of the appeal was delayed due to the complainant’s sick leave but was scheduled for October 12, 2016.The claimant was on sick leave and unable to attend at that time. The Appeal was still live at the time of the claimants unexpected resignation. The Employer had tried to reach out to the claimant both in advance of and during his sick leave and wanted him to put his health first. The Employer had planned to redeploy the claimant back to his parent store once the investigation was concluded, but the claimant had resigned before the appeal was concluded. The Employer was aware of the claimant’s issues at the transferred store and the claimant was offered access to the grievance procedure on 30 September, 2016. The Claimants period of illness was of short duration which was not in the domain to prompt a referral to the Company Doctor. The Employer refuted the claim that the claimant contended he had been forced out of his job. He submitted two sick certs and then resigned. The Employer contended that he had his mind made up as the approach adopted by the company to get him to stall his decision making was rebuked by the claimant. The Employer was informed that it was not up to the company whether he stayed or not. The Employer had no wish to lose an employee of the claimants standing . |
Findings and Conclusions:
CA-00010182-002 Organisation of Working Time Act ,1997.
I have considered both submissions in this case. It is relevant to consider that the complainant ceased employment on 18 October 2017. The Cognisable period for this claim is 13 September 2016 to 13 March 2017.The Complainant was on annual leave for two weeks in September 2016 and followed this with 3 days’ sick leave on 26,27 and 28 of September ,2016. The cognisable period in terms of Section 41(6) of the Workplace Relations Act, 2015 in respect of the claim is therefore very narrow and no argument has been advanced for reasonable cause.
S.I no 57/1998 constitute Organisation of Working Time Act Regulations and have been operable since March 1,1998.
Section 12(3) of the Act gives regard to these regulations:
The Minister by regulation provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour)
Section 3 of the Regulations applies to shop employees and permits a minimum duration of the break to be allowed by the employer to be one hour if the working hours include the hours from 11.30 am to 2.30 pm.
I have considered the records as advanced by the Respondent in the case and note that the reference to the Employee entitlements did not encompass the detail contained in the Regulations. I have considered the Respondent submission that the Complainant made an unannounced declaration of entitlement regarding the 1 hour break. I have also considered the complaints response that this was chance information secured by him in pursuance of his case. I considered the “Hours of Work “clause in the staff handbook and found that the terms of the Regulations were indented there.
It is best practice to initiate an action under the grievance procedure prior to referral to the WRC. However, the regulations are clear and unequivocal and I am satisfied that the respondent did not invoke the regulations and is in breach of Section 12 of the Act. I have found the complaint to be well founded.
CA-00010182-003
I have given the facts of this case a lot of thought and I have established that a Dispute between the parties was in being. I found it a very unfortunate case not aided by the need to assign the case for three hearings and the parallel extensive administrative search on establishing the presiding complaint form. I am satisfied that I have worked off the original complaint made on March 13,2017. On the final day of hearing, I requested further documents from both parties surrounding the circumstances of the appeal lodged into the Investigation Report findings. I am grateful to both parties for their assistance in this regard.
My powers in relation to this complaint spring from Section 13 of the Industrial Relations Act, 1969, where if I find merit in the Dispute, I can make a recommendation to the parties. In this case, the claimant sought compensation and the Employer rejected this and requested proof of loss of earnings and mitigation of loss. The Claimant gave oral detail on these.
I have found that the evolution of the Investigation into the complaint lodged under Dignity at Work served as the antecedent event of change in a previously happy work experience for the claimant. The Employer gave an expansive outline on the evolution of the Investigation, The Dignity at Work Policy, the signed terms of reference and the anticipated time scale surrounding its completion. I note that the claimant engaged fully in the Investigation and agreed to transfer to the nearby store to facilitate this. I found provision for this in the company policy. I asked the claimant whether he had objected to the redeployment or whether he had sought an earlier re-alignment to his parent store? He answered no to both questions. I was surprised at this given his clear affection for the parent store and his clear unhappiness at the transferred store.
I have found that the case before me dichotomised on both party’s responses to the outcome of the investigation. The Claimant understood that he had part appealed the single finding against him which should not have precluded the recommended Mediation process after the Investigation. On the other hand, the Employer interpreted the appeal lodged as a full appeal which warranted stalling any recommended Mediation until the appeal was concluded. This was delayed through the Summer months and the claimants sick leave and was live at the point of the claimant’s departure. I have taken the time to consider the actual wording of the appeal lodged.
On 13 July 2016, the claimant submitted an email in response to his reception of the final Investigative Report:
“ ….. As X is unsure and I know that it is untrue, I am appealing the decision “
On a reasonable interpretation, this would indicate that the claimant rejected the report. I note that there was no dialogue on this and an over reliance on email communication then replaced an identified disputes resolution process.
It is regrettable that the parties had not engaged in the informal aspect of the Dignity at Work Policy. I note that the complainant was aggrieved at the protracted time scale surrounding the investigation. I read the report and found it to be a robust investigation adhering to fair procedures. I note that there was provision for the issuing of a draft report, yet neither party commented on this.
I note that the claimant was unrepresented throughout this process and I believe that this did not serve him well as he may have benefitted from an advocate and a navigator through an unfamiliar process. He was unfamiliar with the code of practice on Grievance procedures and came across as completely overwhelmed firstly by the negative finding of the Investigation coupled by his subsequent experiences at the transferred store. It is regrettable that neither party reviewed the claimants work base location in the immediate aftermath of the Investigation report , given that the complaints in the main fell .
In taking an objective view, I have found that the parties should have engaged directly on the outcome of the Investigation report where an appeal was provided through the grievance procedure. The appeal lodged in this case, while accepted by the Employer was not accompanied by a commensurate action plan as set out on the evolution of the Investigation first day. This added to the confusion and served a clear “boulder “to progress.
It is not lost on me that the claimant did not acclimatise well in his temporary base from April 2016-October 2016. However, while it was clear that he carried a deep sense of exclusion and injustice at the hands of his former employer. outside the appeal of the Investigation, there is no foot print of activation of the grievance procedure. Given that the claimant submitted that his first visit to his Doctor occurred in October 2016, it is clear to me that he suffered in silence prior to his dismissal.
I note that the Respondent did attempt to reach out to him before and after the resignation but a meeting with a Senior Manager did not materialise due to scheduling and the eventual referral to the WRC.
I have found that the claimant was deeply affected by his experiences at the Employers business from July -October 2016, yet there was a clear void in a mutually agreed resolution process. I have considered that the claimant did not participate in the appeals process surrounding the investigation prior to his resignation . I understand in part his clear sense of grievance surrounding the longevity of the Investigation process, however, it would have been reasonable to have recorded a participation in the appeal. In relation to his stated negative experiences at the transferred store, I would have expected the claimant to have harnessed these into a grievance and while I appreciate that he understood that he had worked within the company procedures, no grievance had been lodged on his behalf.
This brings me to the topic of the claimant’s resignation. On a careful analysis of the facts before me, I did not establish a “last straw” event which led to this, I accept that the claimant was traumatised and he felt diminished and overpowered in a work setting. However, I find that he was obliged to activate the company procedures to seek to resolve his difficulties in advance of his decision taken to resign. I have taken consideration of the employer’s efforts to get him to change his mind, which were fruitless. Based on the omission of reliance on procedures aimed at resolution, I have found that the claimant’s actions to resign on October 18 were precipitous and short of what I would consider fair and reasonable grounds for an involuntary termination of employment.
I am not satisfied that the Investigation Report was not finalised and I have found merit in this aspect of the Dispute alone.
Decision and Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00010182-002
Section 27 of the Organisation of Working Time Act ,1997 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under the Act.
I have found the claim to be well founded and I order the Respondent to pay the complainant the sum of 500 euros in compensation for the breach of Section 12 of the Act.
Furthermore, I order the Respondent to incorporate the Breaks at Work for Shop Employees Regulations (S.I 57/1998) into their administration of the daily breaks and re-affirm their presence in the Staff handbook from the date of this decision.
CA-00010182-003
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have found against the claimant in terms of his claim for involuntary resignation of his employment. However, I would recommend that the parties re-engage on the topic of scheduling the appeal of the Investigation Report, if that is desired by the claimant, within four weeks of the date of this decision. I have made this recommendation to assist the claimant to achieve closure on a report which was largely in his favour and with which he had co-operated fully while he was at work.
Dated: 10 April 218
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Keywords:
Rest periods in a Shop environment. Constructive Dismissal. |