ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009340

Complaint(s):

Date of Adjudication Hearing: 20/11/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and 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).

Unfair Dismissals Acts 1977- 2015

CA -00012278-001

Background:

The claimant commenced employment with the respondent on March 3rd 2008 as Quality Manager. He was paid €7240.19 per months’ gross (€4241.48 net) The claimants employment ceased on February 28th 2017 by means of resignation letter dated December 14th 2016.

On December 9th 2016 the claimant received an e-mail from the Managing Director requesting him to meet with him at 3:30 pm December 12th 2016 to discuss quality performance and priority concerns he had as outlined in the e-mail. On attending the meeting the claimant noted that the HR Manager was also present. The claimant enquired as to why the HR Manager was present and was informed by the Managing Director that it was "to keep him on the straight and narrow". The HR Manager took notes during the meeting, the claimant never received a copy of these notes. The concerns raised in the e-mail were discussed and the claimant pointed out that he had raised some of the concerns the Managing Director was talking about nearly 2 years previously with him and had clarified other issues which were raised. When the claimant was asked if there was anything else the Managing Director needed to be made aware of the claimant informed him that he was continuing to assume the Accountable Managers position and requested that this issue be resolved by appointing a new General Manager, the claimant felt that the Managing Director was not happy that this issue was raised and was subsequently asked to leave the room and was also informed that he would be spoken to on the December 13th 2016.

On December 13th 2016 the claimant received an e-mail from the Managing Director requesting him to meet with him in his office. When the claimant arrived at the office he was informed by the Managing Director that he (the claimant) had two options, either resign or be fired and if he resigned he could not be fired. The claimant was not informed of any reason to be fired either verbally or in writing. The Managing Director informed the claimant that he wanted his letter of resignation on his desk first thing the following morning. The claimant felt he had no option but to resign and tended his resignation as requested the following morning. Later that same day the claimant received an e-mail from the HR Manager advising that his resignation had been accepted and it also outlined the following- his completion date was the February 28th 2017- the e-mail identified duties that required his completion- the e-mail outlined that he had 38 days annual leave which they would allow him carry over but expected him to take 19 of those days prior to his completion date- the e-mail also confirmed that the company would supply a recommendation letter. On the 14th December, the claimant also noted a job posting on Career Wise recruitment website for a Quality and Engineer Manager for a non-named Company in Cork who holds appropriate approval, it was obvious that the position advertised was his. The job was posted on December 5th 2016. A new Quality Manager began on January 23rd 2017 and the claimant was requested by Management to assist him in presenting for an audit and changeover the effect of this was that the claimant was unable to take the 19 days’ holidays as requested by HR before his employment ceased.

Findings:

Both parties attended the hearing.

Having examined the evidence as submitted I have made the following observations.

It is clear from the evidence given that this matter is one of alleged constructive dismissal and as such the onus is on the claimant to prove that by the actions or inaction of the respondent that he had no alternative but to resign.

I find the evidence given by the claimant to be credible and supportive evidence adds substantial weight to the complaint as set out by the claimant.

I find that the respondent has failed to answer or rebuke the complaint or offer any evidence at the hearing which could substantially contradict the claimant’s complaint.

I find that at no time was the claimant afforded any fair procedures.

I find given the evidence that the action of the respondent was premeditated.

I find that given the stringent criteria and regulations that the claimant had to comply with in his working environment an individual of lesser ability could not have given the same length of service without raising questions in relation to their suitability for such a position of importance.

I find that whether you are an entry level employee or an employee in the upper echelons of Management you are entitled to have the principles of natural justice and fairness applied to you.

I find that the claimant took up employment with another company from the 10th April 2017 however on a substantially less salary of appropriately €26,750 per year along with associated costs

Recommendation:

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.

I find that the claimant was dismissed and I award him the following;

Wages from the 28th February until the 9th April in the amount of €7240.19.

I also award the claimant for his ongoing loss the sum of €30,000.

Organisation of Working Time Act 1997

CA-00012278-002

Background:

The claimant commenced employment with the respondent on March 3rd 2008 as Quality Manager. The claimant’s employment ceased on February 28th 2017 by means of resignation letter dated December 14th 2016.

It was submitted that the respondent failed to pay the claimant for 19 days accrued annual holiday on cessation of his employment.

The respondent submitted that the claimant was requested to take 19 days’ holidays prior to his completion date as these holidays were carried over from the previous year.

The claimant submitted that he was unable to take the holidays as he was requested by Management to assist in the handover of his position to the incoming Quality manager and to help with presentation for upcoming audits and given the timeframe for completion he was unable to take the holidays.

Findings:

I find that the communication between Hr and Management could have been a lot better..

On one hand the claimant is requested to take holidays and on the other he is requested to help with the handover of his position and preparation for upcoming audits.

I find it interesting that in an e-mail from HR to the claimant on December 14th 2016 it identifies tasks and duties to be completed, the email also advises of the date of cessation of employment and goes on to acknowledge that the claimant was owed 38 days’ holidays and expected him to take 19 days’ holidays before employment ceased.

HR did not fully appreciate the timeframe involved and did not communicate with Management in relation to same.

I find that the claimant is owed 19 days’ holidays accrued.

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.

The claimant be paid his 19 days’ holidays in the amount of €6349.08 gross

Dated:   22/03/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell