Complainant

Respondent

Anonymised Parties

A Cleaning operative

A recruitment and placement company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020117-001

02/07/2018

The Complainant had been in the Employer’s employment since 2004. The Complainant resigned his position by email on or about the 12th of June 2018 at which time the Complainant was not prepared to or was unbale to move to some second premises under the control or operation of the Respondent company and in circumstances where that move had initially been requested by the Complainant through his representative.

The Complainant believes he was very unfairly treated by the Employer herein as they did not defend and protect him against the victimisation, bullying and harassment he was exposed to in the workplace.

The Respondent valued the Complainant who had been an excellent and long-term Employee. In the last twelve months the Employer had been receiving complaints about the Complainant’s performance such that the Respondent was obliged to investigate and commence Disciplinary procedures. The Complainant, through the Complainant’s representative, sought a way beyond the impasse which was willingly implemented by the Employer though subsequently rejected by the Complainant.

I have carefully listened to the evidence adduced. The Complainant represented himself and I am satisfied that his English was reasonably good and that he understood that the burden of proof rested with him in circumstances where he had resigned his position because the Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation.

The Complainant had been engaged with the Employer since 2004. The Employer recruits and deploys agency staff across many large entities. In this instance the Complainant had been engaged in the capacity of cleaning and hygiene and had been successfully deployed in one of the Hospitals situate in Dublin. The Complainant’s career was unremarkable for well over twelve years. In the middle of 2017 the Complainant was moved to a particular ward in the Hospital, which move he found particularly difficult. I accept that there must have been some sort of a personality clash with the Clinical Nurse Manager (BS) in charge of that ward. In an email dated the 27th of October 2017, BS wrote to the Complainant’s supervisor outlining a series of problems she believed she was encountering with the Complainant’s work and standards. This was not something that the Complainant had experienced before. His work had always been up to the task. There were also issues concerning the Complainant taking extended breaks. The Employer was bound to investigate this serious complaint and the Client Services Manager called the Complainant to an investigation meeting which was followed up by a Disciplinary meeting which was conducted on the 30th of November 2018 by the site Healthcare Manager SG who was available to give evidence before the Adjudication process.

The Complainant was represented at the Disciplinary meeting by a very experienced SIPTU official CD. I have read through the notes of each of these meetings and would consider that the Complainant’s rights were fully protected in the process and in particular having Mr CD by his side, gave the Complainant some comfort. It   is clear from reading through the notes that Mr. CD was mindful of the Complainant’s need to be himself more flexible and to follow instructions in the workplace. At the same time recognising that issues that may arise should be processed through the appropriate supervisor.

Unfortunately for the Complainant the numbers of Complaints being formally brought against him had escalated so that by the end of January 2018, the Complainant had had to have a very frank and private discussion with his Union Rep CD wherein he agreed and gave permission to CD to approach the Employer with a view to moving forward without the legacy of this particularly difficult period weighing him down.

It is to the credit of the Employer and particularly Ms. SG the Healthcare Manager that the Employer was prepared to find an alternative site in which the Complainant could work and that if the Complainant moved to an alternative site the Employer would expunge the balance of the Disciplinary processes and sanctions thereby allowing the Complainant to have the proverbial fresh start. This was done, I believe, partly to acknowledge the Complainant’s excellent previous record.

The Complainant was provided with two Hospital/Nursing Home alternatives and these were communicated to him. Whilst I accept that neither might have been as close as the Hospital wherein the Complainant had worked, I am absolutely satisfied that the extra journey time might have been only 15 minutes. The alternative employment was therefore suitable.

Somewhere along the way, the Complainant became convinced that the better option for him would be to be made redundant and with fourteen years’ service under his belt I can see why this might be so. The difficulty is of course, that no redundancy had arisen and in fact SG explained to me that there was a constant demand for Employees and redundancy just did not arise.

Again, Mr CD with the permission of the Complainant approached SG with a proposal that SG was willing to implement at a local level and as a one off. SG agreed to pay the Complainant four weeks in lieu of the Notice period which was to be served in the run up to the change in workplace from one Hospital to the next which was due to be implemented on the 12th of June 2017.

The Complainant went in to meet with SG in early June to sign the agreement brokered with the SIPTU official on his behalf. However, at the meeting the Complainant indicated that whilst he wanted to take the lump sum on offer he also wanted to continue working with the Employer as he could not afford to have no employment. I understand that the Complainant therefore never took the lump sum on offer and continued in the workplace right up to the date he was due to attend at the alternative Hospital wherein he was due to start on the 12th of June 2018. On that date the Complainant turned up at his habitual place of work and was advised that he was no longer an employee there. The Complainant resigned with SG on that date by email seeking his P45 and last pay check.

Although the Complainant made allegations of harassment and victimisation he did not present any evidence in respect of this claim which I believe to have had a lesser import and significance. There was, I note, no formal Grievance in respect of any such alleged behaviour.

I note that the Complainant has been on Job Seekers since a few weeks after that date and that he has not sought alternative employment other than in the kitchen of the same Hospital from which he has just recently resigned in circumstances where he knows a chef who might be able to get him on board.

I know that the Complainant feels most aggrieved at how things went for him in his last year of employment. It is hard to reconcile the anger and complaints and discontent with the unblemished working relationship which had preceded it. I would have to give some weight to the actions of DC in his attempt to ameliorate the situation by simply extracting the Complainant and placing him at an alternative site. It tends to suggest that the Complainant was worth going the extra mile for. The Complainant’s employer appears to have agreed with that summation and agreed to a move and a fresh start.

For reasons not fully explained the Complainant was not happy to either of the alternative sites on offer and his reasons given (more time travelling, childcare issues) did not seem insurmountable to me. On balance, I do not find that the Complainant’s Employer had conducted itself in such a way that the complainant had no option other than to tender his resignation.

The Complainant’s claim under Section 8 of the Unfair Dismissals Act, 1977 must therefore fail.