ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014879

Parties:

Complaint(s):

Date of Adjudication Hearing: 15/08/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)

Background

The claimant commenced employment with the respondent on the 9th June 2014 as a warehouse operative. He was paid €420 per week (€375 net) the claimant submitted that he had to leave his position due to the conduct of the respondent and others at work on the 31st January 2018.

The claimant submitted that he was assaulted by a fellow work colleague on the 28th September 2017. It was stated that the respondent failed to provide him with a suitable alternative work arrangement which would take his safety and wellbeing into consideration.

The respondent submitted that on or about the 28th September 2017 the claimant raised an allegation that he had been the subject of an assault by a fellow employee. It was submitted that the claimant was certified unfit to work on the same date. The respondent stated that following receipt of the complaint and in line with best practice and the respondent’s own policies and procedures, an investigation was initiated into the complaints raised by the claimant. It was submitted that the investigation carried out was a thorough one, in that all relevant witnesses, including the claimant, were interviewed. At the conclusion of the investigation, there was no evidence to substantiate the allegation which had been put forward by the claimant. The respondent submitted that arising out of issues raised during the investigation certain steps were taken and that clarity was given in relation to an issue regarding the clocking in and clocking out procedure and a further recommendation was made for the dignity in the workplace policy to be discussed at a local level with all parties involved.

On the 17th October 2017, the claimant was requested to return to work. The claimant refused to do so.

The claimant was assured that he had the full support of the respondent and that there is a zero-tolerance policy for any form of bullying in the workplace. The respondent also offered the claimant the facility of mediation between himself and the employee against whom he had raised the allegation.

The respondent submitted that following the conclusion of the investigation the claimant also requested to be transferred to other premises being operated by the respondent. This request was considered by the respondent, however, there were no vacancies at that premises at the time.

The respondent submitted in circumstances where the claimant remained absent from work, he was again evaluated by the respondent doctor in January 2018, the claimant was again deemed to be fit to work subject to the efforts being made to resolve whatever grievances and/or issues.

The claimant was requested to return to work on the 29th January 2018, and further, it was expressly clarified that if he failed to return that he would be deemed to have abandoned his employment. The respondent provided the claimant one further opportunity to return to work by way of correspondence dated the 30th January 2018. The failure by the claimant to contact the respondent left the respondent with little alternative but to terminate his employment by way of letter dated 7th February 2018.

The respondent stated that the claimant was afforded the right of appeal which to avail of, however, despite two dates for the appeal hearing the claimant failed to show.

Findings

I find that the claimant is claiming constructive dismissal because of the behaviour of the respondent and another while the respondent submitted evidence that the claimant’s employment was terminated by way of letter dated the 7th February 2018. I find that the claimant failed to attend the appeal hearings that were setup for him.

I find the safety, health and wellbeing of any employee are crucial in any employment context. I find that the claimant had genuine concerns about his wellbeing, however, I find that the respondent had taken all reasonable steps with their policies and procedures to ensure the claimant had a safe working environment. I find that the claimant did not give the respondent the opportunity to demonstrate and assure the claimant that he had the full support of the respondent. To provide a safe work environment.

Decision:

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.

The complaint for constructive dismissal fails.

Dated:   5.11.18

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Key Words: