ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013472

Complaint:

Date of Adjudication Hearing: 27/06/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND.

The Complainant was employed as Stock Control Manager from 14th April 2014 until he terminated his employment on 26th February 2018. The Complainant was paid £653.85 gross per fortnight and he worked 40 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company provided in the Company Handbook. The Complainant referred a complaint to the Workplace Relations Commission on 26th February 2018 alleging he had been unfairly dismissed by reason of constructive dismissal.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant stated that he was 61 years of age when he commenced employment with the Respondent in 2014. At that time there were 16 Stores nationwide when he resigned there were 35 Stores. He had responsibility for stock control in all the stores. He set out the number of employees he had to assist him with particular reference to the years 2016/2017. He was also responsible for the training of all the employees in relation to stock control and he also negotiated with stock providers in relation to stock to be provided to each store.

The Complainant stated there was an increase in his workload in 2014 when a Warehouse in a named location with 5 employees reported to the Complainant. In 2015 a Warehouse for greeting cards with a Manager and three employees was set up and reported to the Complainant. In 2016 for the annual stock take, which happens in January each year, and an external Stocktaking Team did this annually over 18 days with the Managers. Two Stores per day were closed 3-4 hours early each day to facilitate this. However in January 2017 the Stores did not close and therefore this was more stressful with no support given to him. This necessitated him working 7 days a week in January 2017 while in 2016 he worked 6 days, had a break and then resumed. He stated he sat opposite the HR and Operations Directors and he raised this verbally with them.

The Complainant also stated that in October 2015 with the introduction of a new policy – the three option solution was sent to him and he had to choose which Manager it was referred to from five named Divisions. He stated that in November 2016 a Pop Up Store was to open in a named location within 3 days and his responsibility. It didn’t happen. And he had been moved location within the Office Structure.

The Complainant stated that his role as Stock Control Manager had been amalgamated into the Security Division as the two roles were now compatible

The Complainant was on sick leave from 13th March 2017 until he terminated his employment on 26th February 2018. The Complainant stated he was in receipt of Illness Benefit since the termination of his employment. He was requested to provide verification of this post the Hearing but he did not do so.

SUMMARY OF RESPONDENT’S POSITION.

The Complainant commenced his employment as Stock Control Manager on 14th April 2014. He worked without incident until he went absent due to illness on 13th March 2017. The Complainant was required to investigate problems related to stock and liaise with affected sections – inform security and loss prevention – photograph any damage and to visit sites within the estate where he worked and to liaise with other Departments.

There was a reorganisation of office accommodation at the Head Office where the Complainant worked and new systems and procedures were introduced to manage and account for stock. The Complainant’s Department was moved next to the Security Department with a view to improving communication between them due to the overlap in relation to loss prevention. The Complainant’s Office accommodation both before and after the reorganisation shows he shared a space with three before and with four staff after. However the Complainant had no reporting relationship to the Security Manager but he would have worked with the Security Manager in relation to issues.

The Company had 15 stores in 2014 and 35 stores in 2016 and 2017 and the Company currently has 42 stores. A paperless system was introduced in February 2016 and two staff from stock control were moved to accounts following discussion with the Complainant and the Head of Accounts. An external Company was recruited to complete the stock take at the end of January 2016. The Complainant only worked 5% more hours in 2017 compared to 2016. The Stock Control staff comprised three after the processing of invoices transferred to accounts. While one employee did resign on 5th May 2016 the position was filled on 21st May 2016 but this employee left after 3 months and another employee was recruited some 3 months later. The Complainant was involved with HR in the recruitment process. Since the Complainant went on sick leave in March 2017 the Complainant’s position has not been filled.

The Respondent provided evidence of the average length of his working day in the period 2014 to 2017 and this shows that in 2014 he worked on average 7 hours and 53 minutes while in 2017 he worked 7 hours and 50 minutes a day. His average minimum and maximum hours per week from 2014 to 2017 were also provided to the Hearing. The Respondent also provided evidence of the number of week-end hours worked in 2014 and 2017 and also his travelling expenses claimed by the Complainant between 2014 and 2017 which shows that in 2014 he claimed £877.91 while in 2016 he claimed £910.35 in expenses. The Complainant took 14.5 days annual leave in 2014 – 20 days in 2015 – 21 days in 2016 with three days carried over to 2017.

The Complainant did not raise any Grievance with the Respondent from the commencement of employment until he resigned and the Respondent offered, in letters dated 8/3/2018 and 16/3/2018, for the Complainant to put any formal grievance through the Company procedure but he did not avail of this.

The Complainant had no absence prior to 13th March 2017 when he submitted sick certificates up to 2nd July 2017 but there was no reference to stress in these. After an absence of 4 months the Respondent requested the Complainant to attend the Company Doctor and he was assessed on 6th July 2017 and found he was not fit for work but fit to engage with HR to discuss his “perceived work stressors”. This was the first time the Company were aware of any work stressors. The Complainant at a meeting on 31/8/2017 stated that he had seen three Consultants but they were unable to diagnose what he was suffering from and he submitted two reports from two Consultants. The Company Doctor offered to review these if submitted by his Doctor/Consultant. This was on 22nd August 2018 but these were not submitted to the Respondent’s Doctor until February 2018 just days prior to his resignation.

There was no complaint under the Company Dignity at Work Policy. Neither of the Complainant’s two Consultants refer to work related stress and neither does his GP. – evidence provided to the Hearing. The Respondent, in line with their policy, did have keeping in touch meetings (5).

The Respondent referenced Case Law in support of their arguments.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence from both Parties with supporting documentation and submissions and questioning by the Adjudication Officer I find as follows –

Section 1(1) of the Act defines what is commonly described as “constructive dismissal” as follows – (b) the termination by the employee of his 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.

There are essentially two tests that an employee can argue in a complaint of constructive dismissal.

There must be a significant breach of the contract of employment by the employer, which shows that the employer no longer intends to abide by one or more elements of the contract of employment and that in such circumstances the employee was justified in tendering his resignation.

The Complainant has not established there was any breach of contract by the Respondent.

The second test, the Complainant must have acted reasonably in tendering his resignation. The evidence was the Complainant did not make any complaint to the Respondent even though he was invited to do so several times by the Respondent. The Complainant was on sick leave from March 2017 until he tendered his resignation in February 2018. The Complainant sought to establish at the Hearing that he suffered work related stress but this was not supported by any medical evidence from either his GP or Consultants nor in relation to the working hours and attendance of the Complainant from 2014 to 2017.

The Complainant has not established that he acted in a reasonable manner in resigning from his position.

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.

On the basis of the evidence, submissions, my findings above and in accordance with Section 8(1)(C) of the Act I declare this complaint of constructive dismissal is not well founded.

Dated:   10/10/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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