Complainant

Respondent

Anonymised Parties

An IT Engineer

An agency provider of IT Workers

Representatives

None

Cathy Smith, BL instructed by Maguire Muldoon Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00000748-001

10 November 2015

The complainant asserts that the respondent dismissed him on the 9th October 2015 and also raises issues about parental leave. The respondent states that the complainant resigned and denies the claim of unfair dismissal.

The complainant outlined that issues arose when he returned from parental leave on the 24th July 2015. His role now involved working for colleagues he had trained. His pay had not changed and he had been promised a pay increase. His role was that of technical consultant and he worked in a team, taking calls as a technical support agent. He understood that he would be offered another role after two or three months of doing this one.

The complainant said that he did not resign his employment, but was let go by the respondent at a meeting on the 8th or 9th October 2015. On Friday, 9th October 2015, he left the client as he had been told by the HR Manager that he would no longer be working for the respondent. He accepted that this role with the client had finished. On the 2nd November 2015, he met with the HR Manager and the Service Delivery Manager joined the meeting by telephone. He complained about his return from parental leave and the pressure placed on him by the Client Manager. He said that the respondent had failed to act. He was dissatisfied that he was not getting the things he was promised, such as the pay rise. The complainant said that he wanted to be reinstated and was prepared to wait for a suitable role. After the meeting of the 2nd November 2105, the respondent would not reinstate the complainant to his role. It had said nothing in response to his concerns.

The complainant said that on the 15th September 2015, he had been asked by the Service Delivery Manager to resign. This manager was the first to mention the complainant’s resignation. The complainant referred to the email of the 28th August and the reference to “last day with the company”. The Service Delivery Manager had been away and replied to the complainant on the 15th September. The complainant raised his outstanding annual leave in the email of the 25th September. He said that this was his last day with the client. He had also realised that he had received his terms and conditions, which he then sought by email. At this time, the complainant’s role in the client company was coming to an end and the client asked him to stay for another week.

The complainant outlined that he received his P45 after the 9th October 2015. This was issued to him even though he had told the respondent he was submitting a grievance. The respondent should have delayed sending him the P45. The complainant said that he was not happy with the email of the 9th November 2015. It did not mention his job and did not deal with the issues he raised at the earlier meeting.

The complainant said that since the end of this employment, he worked on a number of small contracts and returned to India for family reasons. He also applied for other jobs. It was hard to get the exact same role and he will have to step back to the service support area. There was no acknowledgement of the respondent’s failings. One client role had been difficult and he did not realise that he would be taken off this role. The complainant received a warning, related to him not emailing the Client Manager at 6am when he was to be late for work. He arrived at the office at 6.15am and had informed his team he would be late. Others had been late but they were not disciplined. The complainant said that his trouble with the Client Manager stemmed from his request for parental leave. He referred this matter to the Director and the Client Manager became angry.

In cross-examination on the first day of adjudication, the complainant was asked who told him his job was ending. The complainant named the Service Delivery Manager. The complainant was asked when was he told that his job was coming to an end; he replied that this occurred in the week of the 9th October or the 2nd October 2015. He was aware that the role with the client was coming to an end and he had clarified that his email was not notice. The complainant said that it was the HR manager who told him that his contract of employment was being terminated. This took place on the 9th October 2015.

On the second day of adjudication, the complainant outlined that his role with the client had been temporary. He was not treated correctly after taking parental leave. He had been forced out by the respondent. He clarified that he has since moved to Canada and was working with a family member in a role unrelated to IT. It was the Client Manager who told him that he would have to leave the job. He said that things were not working out and maybe the complainant should leave the job. The complainant then sent a formal email to the respondent on the 27th March 2015 and the Client Manager was not happy with the email. The complainant was not allowed to return to this client after taking parental leave.

The complainant submitted an email of the 3rd April 2015, which was a warning for being late. This was, however, in retaliation for the complainant’s earlier email to the Director of the 3rd April 2015 regarding parental leave. The Client Manager was aware of the complainant’s circumstances and penalised him for being 10 minutes late.

In further cross-examination, the complainant accepted that his last day of employment with the respondent was the 9th October 2015 and that this was when the respondent sent him a P45. The complainant was asked whether he attended work the following Monday; he replied that no one contacted him on the Monday so he did not go to work. He had sent the email of the 8th October 2015 and was waiting for a reply. He met with the HR Manager but it took two weeks to get a reply. After he referred a complaint to the Workplace Relations Commission, the respondent agreed that he could return. He was offered the most junior role. The Director said that he had left the pay issue for too long. He had gone on parental leave at a time he was promised a pay increase. The complainant was asked when he clarified that he was not resigning; he said that this took place on the 8th October 2015 in a phone call and email. It was put to the complainant that this email does not refer to not resigning; he replied that he had not referred to resigning in the email.

The complainant said that in his conversation with the HR Manager, she referred to having his notice from his email. This was sent to the Service Delivery Manager but related to leaving the client. It was put to the complainant that the HR Manager’s email of 17.55 hours on the 9th October 2015 confirms that the respondent is not terminating his employment; he replied that the Service Delivery Manager had emailed him to say that he had to leave. It was put to the complainant that his email of the 14th October 2015 states that he is not resigning; he replied that he had also made this clear in the phone call of the 9th October 2015. In respect of the placement with the client, the complainant was not happy with his pay and hours. He was promised extra pay at a time when the Client Manager told him to leave a previous role. He accepted that this was the first time he and the Service Delivery Manager had worked together. The complainant was referred to the Service Delivery Manager’s email of the 30th July 2015 where it is clear that the placement was a limited one and the further email of the 28th August which refers to the last day being the 2nd October. The complainant was referred to Service Delivery Manager’s email of the 15th September which states “you have said you no longer wish to work for [the respondent]” and it was put to the complainant that there was no reply from him to say that he was only leaving the client. In reply, the complainant said that he clarified this in the phone call and in an email. He raised his grievances with the Workplace Relations Commission. The Service Delivery Manager rang him, where he clarified that he was not leaving and that he was pursuing issues with HR. The Service Delivery Manager knew that the complainant was not happy and the complainant asked him not to send any more emails. The complainant accepted that he had not sent an email in reply. He spoke with the Service Delivery Manager on the 25th September about not resigning. He accepted that the contract and handbook were sent him on the 21st September. The complainant was referred to an email from HR of the 25th September which refers to his end date at the 9th October; he replied that he was concerned by this email and raised this in the phone call of the 8th October. He could not recall why he did not speak with HR about this before the 8th October, but it was clarified on the 8th October.

It was put to the complainant that while his email of the 25th September 2015 does not say he is resigning from the respondent, this was clear from his previous correspondence with the Service Delivery Manager; he replied that he had clarified this in the phone call that this only related to the client. The complainant was asked why was he worried about outstanding annual leave if this only related to the client; he replied that this was because he had lost out on moving clients and was not given additional leave provided to everyone else. In respect of the email of the 8th October 2015 from the People Support Service Co-ordinator, the complainant said that this was where he clarified things with the HR Manager and the Service Delivery Manager. He told the Service Delivery Manager that he was not leaving. The respondent should have dealt with his issues. The complainant was asked whether the HR Manager and the Service Delivery Manager had told him he was losing his role; he said that he confirmed over the phone that he was not resigning. He had clarified this before the 9th October. Afterwards, he followed the grievance procedure and was told, weeks later, that he would not be reinstated. It was put to the complainant that the HR Manager and the Service Delivery Manager did not terminate his employment. It was put to the complainant that the respondent had sent him a card and gift voucher after the end of his employment; he replied that he was not sure. It was put to the complainant that the first time he said he had not resigned was the email of the 14th October. The complainant said that there were multiple calls between the 8th and 14th October but the respondent would not agree.

It was put to the complainant that the first time he had raised issues was the 8th October; he replied that he had referred to issues in his April emails. There had been six months of difficulties. He met the Director and was not happy with her response, for example on the pay issue, which she said he had left for too long. He said that this was when he was on parental leave and fobbed off by the Client Manager for three months. It was put to the complainant that the HR Manager and the Service Delivery Manager were open to having the complainant return at their meeting of the 2nd November 2015 and he wanted to delay this until January for a particular role; he replied that he had informed the respondent he was suitable for the role and could wait until January. He was being flexible. He never said that he could not work because of personal circumstances. It was put to the complainant that the reference to “you’re welcome to apply” in the email of the 9th November was consistent with the respondent’s understanding of the 2nd November meeting. The complainant replied that he was happy to wait and did not have access to “open roles”. It was put to the complainant that there was no work on offer and he was offered his old role back. He was offered a position after his WRC complaint of the 9th November. This occurred in February 2016 and he declined as he did not think he would be treated fairly.

The complainant accepted that when he availed of parental leave, he was working at a named client and needed some time off. It was put to the complainant that the Director initially offered one week’s parental leave but this was not adequate. It was further put to the complainant that the client’s agreement with the respondent was that an employee could not be absent for more than one week. The complainant accepted that he availed of three months’ parental leave. It was put to the complainant that the parental leave was difficult to put in place, but it did happen; he replied that what occurred between the respondent and the client was none of his business. He was unhappy with how he lost his security clearance with the client, he was summarily excluded. There was no security justification for this. It was put to the complainant that the client cuts off access to any former contractor; he replied that this had not been communicated to him. The Client Manager should have informed him this would happen.

It was put to the complainant that he was afforded flexibility after his return from parental leave; he replied that he was offered one role on his return and could have done other named roles. He also asked for updated terms and conditions and did not refuse alternative work with the respondent. The new client role was the only offer made to him. It was put to the complainant that he was paid for the period of the 24th July to the 28th August and he did not have to work until the new client role started; he replied that there was a delay in the respondent obtaining security clearance for him. It was put to the complainant that the role in the former client was no longer suitable as there was a lack of certainty regarding him; he replied that he had progressed with this client and they were happy with him.

In closing comments, the complainant said that the Service Delivery Manager had been on the phone at the meeting where notice was discussed. He could not recall why this had been the case and the complainant and the HR Manager had discussed future roles. He was not treated fairly by the respondent over a period of 10 months. He was not offered his old role back in November 2015. He then referred the complaint to the WRC. These underlying issues led him to decline the respondent’s offer of February 2016. He had followed the grievance process.

The respondent questioned whether the complainant had resigned or was he claiming to have been dismissed. The complainant said that he did not resign, but the respondent submits that he did resign. It submitted that there was no dismissal.

The Director of People & Talent gave evidence. She worked for 12 years with the respondent. The complainant had been on parental leave but the client insisted on keeping all staff. He was very unhappy at the offer of one week’s parental leave. The respondent wanted to give him the period of parental leave but the client insisted that he leave. She outlined that the respondent provided solutions and people to large ICT firms. They tend to be multi-year contracts. The respondent sent the complainant the open jobs on his return from parental leave. This was a weekly list circulated so that people could change roles or entice others to join the respondent.

The Director and the complainant held a return to work meeting prior to his return to work. It was not clear what role would be available and she asked him to come in to work with the technical team. The complainant asked for a job description but there was none. The role with the new client came up and it seemed to be a good short-term fit. It was to be a four to six-week term. The Director ask the complainant to come into the office while they waited for security clearance, but he did not want to come in. She suggested to the complainant that he could use this time to upskill. She commented that the complainant did not have the skills for the two jobs he referred to in the list of the 6th July 2015. They required a higher technical skill set. The complainant’s old job had then been filled and it was not open to place the complainant back to his own role.

The Director outlined that she saw the complainant’s email of the 8th October 2015 on the following day. She asked the HR Manager to get back to the complainant. The Director said that she felt they needed to look after the complainant and he was offered the grievance process. The complainant no longer wanted to work with the respondent. The respondent offered the complainant a return to work. In respect of the complainant’s longstanding grievances, the Director said that the complainant was a reputable person and had issues at home in early 2015. He had not escalated to HR his issues with the Client Manager. She stated that the respondent had not ended the complainant’s employment.

In cross-examination, it was put to the Director that the complainant was not offered his role back and the offer made in February 2016 was too late; she replied that during all the discussions, there were opportunities for him. In respect of one of the roles advertised on the 6th July 2015, the complainant said that he had already worked this role for six months, with praise from the client; she replied this was not the same role. While the role stated in the email was the generic role, the actual role was different. It was put to the Director that she should have intervened when the complainant received a warning from the Client Manager; she replied that she did intervene by ensuring that he was able to take parental leave even though he was frustrated. It was put to the Director that the complainant had raised the issue of his pay; she replied that she informed the complainant that he could lodge a grievance. Things moved on and the complainant had referred to things having passed on.

In closing comments, the respondent submitted that it was for the complainant to show that there was a dismissal. The respondent believed that the complainant had resigned. While the complainant has stated in evidence that he clarified this on the phone, the respondent submitted that he only stated this in writing on the 14th October 2015. The respondent submitted that it was clear from the emails that it did not terminate the complainant’s employment. The respondent submitted that a claim of constructive dismissal does not arise as the complainant says he was dismissed. There was also no parental leave claim. In respect of mitigation, the respondent outlined that the complainant had been offered his role back in what was a growing IT sector.

The complainant commenced employment with the respondent on the 28th January 2008. The respondent provides IT personnel and solutions to IT firms. In 2015, the complainant worked at two clients. In the first placement, he interacted with the Client Manager. The complainant outlined that he felt pressured by this manager, in particular after the complainant sought to avail of parental leave. At this juncture, it is important to acknowledge that the complainant faced a situation involving his family that caused him to “rethink everything”.

The first thing to say about the complainant’s application for parental leave is that the complainant was largely successful in negotiating parental leave in the face of the respondent’s initial reluctance. On the 2nd April 2015, the respondent offered one week’s parental leave and modified their position in the letter of the 23rd April 2015. The latter approach is more in line with the parental leave policy set out in the Employee Handbook.

The complainant’s employment came to an end in October 2015; it is in dispute whether he resigned or was dismissed by the respondent. Leaving this dispute aside, it is clear that in and around October 2015 the complainant expressed his dissatisfaction with how his parental leave application and his return to work were dealt with. It is a significant issue in the complainant’s email of the 8th October 2015.

A cause of the complainant’s dissatisfaction was how the period of parental leave impacted on his role in a particular client. His placement with this client ended when he began the period of parental leave on the 27th March 2015. The documentation suggests that the complainant worked in this client for about a year and wished to continue in that role. He expressed his unhappiness that his security clearance was immediately removed by the client (according to the respondent, per the client’s policy). In September 2015, the complainant expressed an interest in returning to the client.

On the complainant’s return from parental leave, he commenced another role on the 25th August 2015. He reported to a new line manager, who was based in the UK. They interacted by email and met for the first time on the 26th August 2015. The Service Delivery Manager’s email of the 28th August 2015 alludes to the complainant’s intention to resign. His follow-up email of the 15th September 2015 was clear that his understanding was that the complainant intended to resign. The email states: “As per our meeting on the 26th August, you informed myself and [the People Support Service Co-ordinator] that you no longer wished to work for [the respondent] after your cover work on the [client] account.” It is significant that in the emails that followed, the complainant did not challenge this account of the meeting of the 26th August 2015.

As mentioned above, the central conflict in this case is whether the respondent dismissed the complainant or whether he resigned. In the context of a discriminatory dismissal claim, the Labour Court in Millett v Shinkwin [2004] E.L.R. 319 held:

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.

There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered.”

The question is whether the employee resigned and this is a matter to be judged objectively. It is clear from the email correspondence that the complainant indicated he was to resign his employment with the respondent at the end of a placement with a client on the 9th October 2015. This is clear from the account set out by the respondent in the email of the 15th September 2015. It is significant that the complainant did not immediately challenge this account of the meeting. This position is fortified by the HR Manager’s email of the 9th October 2015 where she says that the respondent has not terminated the complainant’s employment or given him notice. The complainant takes issue with his interactions with the Client Manager and the Service Delivery Manager. Even if those criticisms are correct, no basis has been advanced to criticise the interventions of the HR Manager, in particular the open and pragmatic terms of the email of the 9th October 2015. I find that the complainant informed the respondent of his resignation of employment.

The complainant’s email of the 14th October 2015 states: “As far as my resignation is concerned, let me confirm that I have not resigned. Please can you reply back and let me know if someone is ready to take responsibility about my complaints with [the respondent] and can accept the mistake made on behalf of the company?” I have found above that as of the 9th October 2015, it was clear that the complainant had resigned. Even if the email of the 14th October 2015 is explicit that the complainant has not resigned, what is absent is the enunciation that the complainant wishes to work. He had not attended for work on the next working days after the 9th October, i.e. the 12th and 13th October.

In this and subsequent emails, the HR Manager sought to meet the complainant to explore his grievances. They met on the 2nd November 2015 and discussed viable alternative roles. The respondent indicated in the email of the 9th November that it could not promise the complainant that roles would be available in 2/3 months’ time. This indicates that the complainant’s employment came to an end on the 9th October following his resignation. He and the respondent then sought to explore opportunities for a new role.

Having made the finding that the complainant resigned and his employment ended on the 9th October 2015, and for the sake of completeness, it is necessary to assess whether the complainant can assert constructive dismissal. It is well established that an employee is entitled to assert that they have been constructively dismissed where they can show that the employer has repudiated the contract of employment to such an extent that they no longer intend to be bound by it. An employee can also succeed on the second, reasonableness ground, where they can show that an employee could not be expected to continue in the employment relationship.

In assessing the evidence in this case, it is clear that the complainant was unhappy with his pay and how his parental leave application was handled, in particular his return to a placement with a different client. Notwithstanding this dissatisfaction, the complainant retained the same rate of pay and terms and conditions. After a period of leave, he worked a new client. He reported to a new line manager. Even if every criticism made by the complainant is correct, it cannot be said to be a repudiation of the contract of employment. If the respondent could be held to have breached the complainant’s parental leave entitlements, this was a matter to take up via the statutory forms of redress.

After the 9th October 2015, the complainant was asked to attend three “informal” meetings; he attended the meeting of the 2nd November 2015. This was an opportunity for the complainant to discuss his future employment with the respondent and he sought a return to work some 2/3 months hence. On the 9th November 2015, the respondent indicated that it was unable to commit to an appropriate role being available in the future. It is clear from these emails that the respondent wished for the complainant to continue working for it; it was unable to offer the role and timing sought by the complainant. Given this position, it cannot be said that the complainant was reasonable in considering that he had no alternative but to follow through on his resignation.

Taking these findings together, I find that the complaint of unfair dismissal is not well founded. I find that the complainant resigned his employment and was not dismissed by the respondent. I find that any complaint of constructive dismissal is not well founded.

CA-00000748-001

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

Unfair Dismissals Act

Resignation v Dismissal

Millett v Shinkwin [2004] E.L.R. 319