ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013714

Complaint:

Date of Adjudication Hearing: 11/07/2018

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 by the Respondent as an Executive Officer/Civil Servant from 6th February 2001 until he tendered his resignation on 27th September 2017. The Complainant was paid £48,000 gross per annum and he worked 37.5 hours a week. He was provided with a written statement of his Terms and Conditions of Employment when he commenced employment in 2001. He referred a complaint to the Workplace Relations Commission on 15th March 2018 alleging he had been unfairly dismissed. The dismissal was in dispute.

Summary of Complainant’s Positio0n.

The Complainant joined the Civil Service as a Trainee Auditor in February 2001. He was regraded to Executive Officer in 2010. The Complainant and his Legal Representative stated he had set out the substance of his complaint in his complaint form to the WRC.

The Complainant stated that by letter dated 4th October 2017 the Personnel Officer of the Named Respondent stated “…reluctantly accept (his) resignation from the office”. The Complainant subsequently received his P45 in the post. The Complainant asserted that on this basis he was unfairly dismissed by the Respondent.

The Complainant stated that in or around 10th January 2017 he made a complaint under the Dignity at Work Policy for the Irish Civil Service. This complaint was against a named employee. An Independent Investigator was appointed and a report issued on 18th December 2017. The Complainant asserted that it was clear from this report that the Complainant was working in a very strained and difficult environment. – Copy Provided. Prior to the Investigation a named Director was requested to facilitate a mediation. The Complainant was willing to attend, the other named Party was not. The Director did note that despite no mediation As an interim measure it might be worth considering separating the named admin staff in HR from the Finance Admin Staff. This was not done.

The Complainant also sent a number of emails to a named person commencing on 21st February 2017 in which he informs the Respondent that his brother was terminally ill and he sought a transfer within the Department. In an email dated 11th April 2017 he also sought information on any opportunities to redeploy within the Civil Service. On 27th April 2017 He again sought a transfer to another Office or Department. The Complainant stated he sought unpaid leave but this was refused and the Complainant also stated that he was informed he was not entitled to be redeployed. The Complainant confirmed there was no letter to this effect.

There was an exchange with another named employee on 27th September 2017 and the Complainant sent an email to the named Respondent. There followed an exchange of emails between the Complainant and a named Respondent culminating in the Respondent purporting to accept the Complainant’s resignation despite the fact that the Complainant had made it clear he was not resigning from the Civil Service but only from the Respondent’s Office. The Complainant respondent on 30th September 2017 stating he had not resigned his position in the Civil Service but that he needed to transfer to another position. The Complainant also stated that he was in a competition for Higher Executive Officer promotion and that he fully intended to qualify and take up the role. This letter was never responded to.

The Complainant also stated that the Respondent ignored Circular 10/2012 – Resignation and Retirement Notice Periods – This provides clear directions as to how Civil Servants should resign from the Civil Service. The Personnel Officer never referred to this Circular in any correspondence with the Complainant.

The Complainant argued that he did not resign from the Civil Service.

The Complainant stated that he had not worked since September 2017 nor had he applied for Jobseekers Benefit from the Department of Social Protection. The Complainant stated that he is on a Panel for Promotion to HEO which expires in October 2019. However he stated that in correspondence from PublicJobs.ie he had been informed that the Respondent had informed them he was no longer in their employment and that accordingly he did not meet the eligibility requirements for the post.

The Complainant stated that he had completed an audit for the 2016/2017 years for his Trade Union but he had not done so for 2018. The Complainant did not provide any mitigation of loss.

SUMMARY OF RESPONDENT’S POSITION.

The Complainant commenced employment with the Respondent in February 2001 and he held a position of Executive Officer. The Complainant made a formal complaint against a named employee under the Dignity at Work Policy on 10th January 2017. The complaint was referred to an Independent Investigator. The Complainant listed 92 separate incidents. The investigation did not conclude until after the Complainant resigned. The Investigator found that in all but one specific allegation put forward by the Complainant there was no affront to his entitlement to dignity at work. The Investigator did not uphold the allegation of Bullying and Harassment.

Around this time there were a number of complaints of bullying and harassment made against the Complainant by two of his colleagues. The allegations concerned the making of covert recordings and sending threatening emails. These complaints were sent to an Independent Investigator, named. That investigation concluded on 6th March 2018 and the allegations against the Complainant were upheld.

The Complainant sent an email to the Personnel Officer on 13th July 2017 seeking an update on his investigation and seeking a mediated solution rather than an investigation and seeking a month’s unpaid leave to investigate the possibilities of a change in career and that if the leave is not approved “I will have no choice but to resign”. The Personnel Officer responded on 14th July 2017 explaining that the policy had been followed to date and in relation to the application for unpaid leave he stated that due to the ongoing investigation he had sought guidance as to the options available to grant unpaid leave. Subsequently the Personnel Officer informed the Complainant that he was prepared to grant him unpaid leave. The Complainant informed him he was no longer interested. This was confirmed in an email from the Complainant dated 26th July 2017.

There was an altercation between the Complainant and another named employee on 27th September 2017. The Complainant emailed the Personnel Officer later at 17.42 stating “I am resigning this position immediately. I would be grateful if I could return on some Saturday to collect my belongings”. The Personnel Officer responded at 18.12 the same day offering to meet the Complainant and asking him to let the Personnel Officer know when he wished to meet even outside the office. There was no response from the Complainant. The Personnel Officer sent a further email on 29th September 2017 again inviting the Complainant to discuss the matter. The Complainant responded on 2nd October 2017 stating he did not see what another discussion would achieve. – copies of the emails provided to the Hearing. The Respondent wrote to the Complainant on 4th October 2017 stating that as the Complainant did not wish to discuss the issue he reluctantly accepted his resignation of 27th September 2017. The Complainant’s resignation was then processed in the usual way.

The Respondent received an email from the Complainant on 6TH October 2017 in which he stated he did not wish to resign from the Civil Service only from the Respondent’s Office. The Personnel Officer in a reply dated 18th October 2017 explained that a resignation from the Office was a de facto resignation from the Civil Service.

On 22nd November 2017 the Personnel Officer received correspondence from the Public Service Executive Union stating that the Respondent had failed to draw the Complainant’s attention to Circular 10/2012 in relation to minimum notice period for resignations. The Union also stated the Complainant had only resigned from the Respondent’s Office not the Civil Service.

The Respondent referenced the Circular 10/2012 which provides that an officer may resign from the Civil service at any time during their career but that re-entry to the Civil Service could only be by way of an Open Competition. The Circular does also refer to failure to give adequate notice may result in a delay to superannuation payments. The Complainant applied to be redeployed in April 2017. However redeployment is governed by Circular 8/2010 and is subject to the needs of the business. The Respondent did consider the suggestion of the Investigator during the failed mediation process to relocate admin units but this was not possible although it was explored.

The Respondent also stated that of the 92 complaints lodged by the Complainant, one was upheld. The allegations made against the Complainant of sending threatening emails and covert recordings were upheld.

Findings and Conclusions.

Preliminary Issues –

Section 1(1) of the Unfair Dismissals Act provides as follows – dismissal in relation to an employee, means – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee. (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.

I note the Complainant sent an email to the named Personnel Officer at 17.42 on 27th September 2017 in relation to an altercation in the office the same afternoon between the Complainant and other named employees. The Complainant goes on to state as follows - I no longer feel safe in this office. I am resigning this position immediately. I would be grateful if I could return on some Saturday to collect my belongings. The Complainant was an Executive Officer, a general service grade across all Government Departments and Offices. The Personnel Officer responded by email on the same day at 18.12 in which he requested the Complainant to come and talk to him. The Complainant did not respond. The Personnel Officer sent a further email dated 29th September 2017 in which he asks the Complainant to confirm his receipt of the previous email and to contact him to arrange a meeting to discuss the issues raised. The Complainant responded on 2nd October 2017 in which he states With the greatest of respect I can’t see what another discussion would achieve. The Respondent did not acknowledge receipt of the letter of resignation of 27th September 2017 until 4th October 2017, after he had sought to meet the Complainant on two occasions, when he stated as follows – I wish to confirm I reluctantly accept your resignation from the Office. I note the Complainant in an email dated 6th October 2017 to the Personnel Officer states I would like to make it clear that my email last Wednesday only indicated that I want to leave my position in the Office not the Civil Service. The Personnel Officer responded on 18th October stating that a resignation as an Executive Officer from the Respondent’s Office was a de facto resignation from the Civil Service.

The evidence, including all the supporting evidence presented from both Parties is the Respondent did not terminate the Complainant’s employment rather the Complainant tendered his resignation by email dated 27th September 2017, with immediate effect.

Furthermore I note that there was no complaint of constructive dismissal submitted by the Complainant to the WRC.

Preliminary Issue – Section 7(2)(c )

This Section of the Act provides as follows - the measures if any adopted by the employee, or, as the case may be, his failure to adopt measures, to mitigate the loss. The evidence from the Complainant at the Hearing was that he had not worked since September/October 2017 when he asserted he had been dismissed by the Respondent, nor had he sought to mitigate his loss, nor had he sought Job Seekers Benefit.

Circular 10/2012

I note both at the Hearing and in correspondence between the Public Service Executive Union and the Respondent, the Complainant and the Union refer to Circular 10/2012 – Resignation and Retirement Notice. I note that at Section 3 – Resignation – of this Circular it states as follows – An Officer may resign at any time during their career. Officers should be made aware that re-entry to the Civil Service following a resignation will only be by appointment from an open competition. I have found the Complainant resigned from the Civil Service on 27th September 2017. There is no provision as a General Grade of Executive Officer to resign from the Department/Office where you are assigned but then claim you remain a Civil Servant with a right to re -enter the Civil Service again at will. There was no evidence presented to me at the Hearing of the Complainant’s intention to re-enter the Civil Service by another route except to say he was on a Panel for promotion to Higher Executive Officer, another general service grade in the Civil Service. However Section 3 of Circular 10/2012 becomes operative on resignation. I also note that the Complainant seeks to rely on Circular 10/2012 in relation to notice of resignations across the Civil Service and further note there is no provision for resignation from an Office or Department of the Civil Service.

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, my findings above and in accordance with Section 8 (1)(c) of the Act I declare this complaint of unfair dismissal is not well founded. The Complainant has not established any evidence either by way of submission or at the Hearing that the named Respondent had dismissed him as set down at Section 1 of the Act

Dated:   10/10/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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