ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015017

Parties:

Complaint(s):

Date of Adjudication Hearing: 18/12/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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 to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

This complaint refers to a complaint for unfair dismissal, a complaint that the Respondent failed to provide the Complainant with his minimum notice entitlements; and a complaint that the Respondent failed to provide the Complainant with all of his annual leave entitlements.

Summary of Complainant’s Case:

The Complainant was employed as A Helpdesk Administrator in the IT department of the Respondent, a retail bookmaker. The Complainant commenced employment on 17th August 2015 and he alleged he was unfairly dismissed on 28th November 2017.

CA-00019376-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977  

The Complainant was being accused of improperly claiming expenses for taking calls or responding to texts outside hours. A number of meeting took place with his manager on 28th November 2017 regarding the Complainant’s claims for his expences. The Complainant submitted that his manager had discussed the matter with the Chief Operations Officer (COO). The Complainant offered to reimburse the overpayments, but he was told it was beyond that now and that he was told that the trust had been broken. The Complainant maintained he had a non-sullied record before this incident.

The Complainant submitted that he was coerced and forced into signing a resignation letter with immediate effect on 28th November 2017. He maintained that he was told by his manager that the COO “wanted him gone”. The Complainant submitted that his manager told him “off the record” that if he left immediately the manager would ensure that he was paid for a further month, but if he did not leave he would have to go through a disciplinary process which was “not looking good”. The Complainant further submitted that he was told by his manager if it went to a disciplinary process he would most likely be fired with no compensation or reference. The Complainant commented that this was happening to him before Christmas.

At the hearing the Complainant advised he would have brought his phone home to take a call or text. He said he received €40 per night when on call, and he would have received €20 per call and per text he responded to. He advised there was also an allowance of €45 per month for his Internet bill. The Complainant submitted that he had followed the instructions from his supervisor on how to claim his allowances. He advised that he sent his hours in every month and he had been paid. He maintained there had been no issues with claims until November 2017. He submitted that he would have received approximately €506 for on-call allowances. Claims were submitted on a monthly basis.

There was three meetings om 28th November 2017with his manager about his expenses. At the second meeting the Complainant said to the manager that he would go back and check his records. He explained at the hearing that his records would have been transferred to an Excel sheet created by the supervisor. He maintained he did not know he had overcharged.

At a third meeting with his manager that day, at 18:10 hrs, he was told by his manager that the matter regarding his expenses would be investigated, and the Complainant maintained his manager told him that he would have “no chance” at the investigation and “it was better he left”. The Complainant advised he was told if he offered to resign he would get a full month’s pay.

As the Complainant had a wife and young family and was in an emotional and confused state at that time he immediately agreed to write a letter of resignation. The Complainant advised that he called his wife to discuss the matter.

The Complainant submitted that his manager told him to write a letter of resignation, told him what to put in the first line of the letter and to add whatever else he wanted, and the manager then printed the resignation letter and asked the Complainant to sign it. The Complainant contended that he was in a state of shock and disbelief and was not in his right frame of mind at the time and this should have been obvious to his manager. After signing the letter the manager then asked the Complainant to take his personal items from his desk.

The Complainant submitted that later in the evening the manager called to the Complainant’s home to collect his laptop. The Complainant expressed reservations to the manager about his resignation and maintained the manager explained it was done now and that if the matter was to be investigated it would not be looking good. The manager refused to accept the Complainant’s withdrawal of his resignation.

The Complainant also advised that prior to his dismissal another person had been added to the team and he therefore inferred that the Respondent had intended to dismiss him and in appointing this other person they were preparing for that decision. This he further believed supports his complaint that he was unfairly dismissed.

The Complainant submitted that there was no HR support available at that time. He spoke to HR during the next day when he was asked what had happened and why he would not stay for the investigation.

The Complainant advised that he did not appeal the decision because the manager had told him it would fall against him and the lesser of two options was to resign. He advised that he had a conversation with HR where he was told about the appeals procedure and he could stay until after the investigation. The Complainant acknowledges he should have stayed but his manager had forced the resignation. He had two conflicting sides, and in light of being told to resign by his manager he believed he had no option but to go ahead with his manager’s suggestion.

As a consequence of these actions the Complainant maintained that he was forced to resign, that his dismissal was unfair as he was not afforded natural justice before his dismissal and that the company failed to follow any policy or procedures regarding an investigation into his alleged misconduct.

At the hearing the Complainant acknowledged that on 30thNovember 2017 and 1st December 2017 he had sent a series of texts to his manager seeking a reference and payments. He maintained that he knew no better and had become concerned that he would be left without any payment or a reference. He maintained that he did not want to leave his job but had no other option.

The Complainant called his wife as a witness. She advised that between 6 and 7p.m. that evening she will she was told by the Complainant that his manager wanted him to resign. She understood that the Complainant was being forced to resign because he made a mistake regarding his claims for expenses for responding to calls and texts. She advised that the Complainant was in a state of anxiety and he could not believe what was happening. She asked him was he all right and she told him to do what he was told to do. She advised that the Complainant told her there was no guidance and there was nothing in writing. He explained to her that it was all his fault and they might lose everything, the house and the kids. The Complainant’s wife was not present later that evening when the manager called for the laptop.

In his written submission the Complainant contended that the dismissal was forced, he argued that Section 1(1)(a) of the Unfair Dismissals Act as amended is applicable and he maintained that his employment was terminated by the Respondent. He was seeking compensation for his unfair dismissal.

The Complainant contended that he had not resigned as that would require some form of negotiation and discussion; that such an action predicates a result that is a genuine choice on his part, and where he would have been afforded the opportunity to take independent advice before offering to resign. He submitted that he was not afforded such an opportunity. Therefore, he argued that in the circumstances of his case he had not freely negotiated his departure, he had no warning that the purpose of the meeting on 28th November 2017 was to discuss the dismissal, and in addition to not being afforded a right to independent advice he was given no time to reflect on the suggestion he resign.

The Complainant referred to Canon V Blake Bros (UD2116/2011) where in that case the claimant was forced to sign a resignation letter following allegations of misappropriation and where the Tribunal was satisfied that the claimant’s resignation was a forced resignation under unacceptable circumstances and as such amounts to an unfair dismissal. The Complainant also referred to Catherine Hannon v Supermas (UD134/2012) where the employee was accused of a wrongdoing and was summoned to a meeting of which she had no notice, where at that meeting she was told it was a sackable offence and the best way would be for her to resign with a reference, and if she did not resign she would be dismissed without reference. In that case the Tribunal found the employer did not adhere to the employee’s entitlements to fair procedures and natural justice and as such she was unfairly dismissed.

The Complainant further submitted there is no general rule or principle of law which founds an employee’s rights to rescind a resignation once given. However, he referred that case law has identified special circumstances in which an employee may rescind a resignation where the circumstances relate to the context in which the resignation is made. The Complainant referred to Southern v Franks Charlesly &Co ([1981] IRLR 278) where it was noted a reasonable period of time should be allowed to lapse, and circumstances could arise during that period which put the employer on notice that further enquiry is desirable to see if the resignation was really intended and can properly be assumed. Such enquiry is ignored at the employer’s risk. The Complainant also referred to Donna Millett v Charles Shinkwin ([2004] 15 ELR 319) where the Labour Court held that a resignation must be withdrawn within a reasonable timeframe, the length of which will fall to be decided objectively by reference to the circumstances of the case, but which will probably be quite short. This case found that an employer’s refusal to allow the employee to continue in her employment amounted to an unfair dismissal where an employee makes a decision to resign which is not fully informed because he/she is not in a position to fully evaluate his/her options or he/she may act on a misinterpretation of something he/she said or done and the situation is still retrievable. It would be unreasonable for an employer to deny an employee an opportunity to recant within reasonable time. Finally, the Complainant referred to McManus v Brian McCarty Contractors (EAT UD496/2007) where the Tribunal awarded compensation to a claimant when her employer refused to accept her withdrawal of resignation in circumstances where the resignation was issued after claiming her manager had verbally abused and physically threatened her, but following a meeting with the company’s CEO she withdrew her resignation in writing. The Tribunal found that the company’s subsequent refusal to accept the resignation withdrawal amounted to an unfair dismissal.

The Complainant also submitted that the Respondent failed to properly investigate the issues regarding the Complainant’s expense claims. The Complainant argued that as identified in the Canon case outlined above, an investigation by the employer is required. The Complainant argued he was not afforded such an investigation; that he was not aware of all the allegations and complaints that led to the request for his resignation; that he was not provided with an adequate opportunity to deny the allegations or explained the circumstances of what occurred before he was asked resign; that no evidence of witnesses or other parties involved were sought; that statements or relevant evidence related to the allegations were not presented to him; and that he was not given a right to be represented when his manager asked for his resignation.

C A-00019376-002 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant submitted that he was not provided with a statutory notice of two weeks termination in accordance with the minimum notice in terms of employment act, 1973.        He maintained his contract afforded him four weeks’ notice.

CA-00019376-003 Complaint under section 27 of the Organisation of Working Time Act, 1997      

The Complainant submitted that he was due 2 days annual leave when his employment was terminated and was not provided with this.

Summary of Respondent’s Case:

The Respondent acknowledged that the Complainant started is employment on 18th August 2015 as an IT Helpdesk Administrator. This role involved the Complainant having access to IT systems which is at the core of its online business and the services to its retail outlets. The Complainant began providing on-call services in June 2016 where he was required to be available to provide IT help outside normal hours. Before being appointed to this position the Complainant was required to complete training in the area with a senior member of the IT helpdesk services team, and to complete a probation period. The Complainant completed his probation period on 4th June 2016.

The Respondent advised that the Complainant reported to a Service Desk Manager. The service desk manager reported to the Chief Technology Officer (CTO).

The Respondent submitted that on 15th November 2017 an issue arose when the Complainant failed to repair equipment for a promotions team and did not advise his manager, and upon being asked about this the Complainant was unable to provide an explanation as to why this had happened. The Complainant was issued with a letter on 15th November 2017 and advised that should a repetition of this matter occur going forward it may lead to disciplinary action.

CA-00019376-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977  

The Respondent denied it dismissed the Complainant and maintained the Complainant had resigned.

The Respondent submitted that the issue relating to the Complainant’s resignation related to his claims for attending out of hours calls. The Respondent submitted that was there was three meetings on 28th November 2017 in relation to the Complaint’s expenses. The Respondent advised that at the first meeting at 14:30hrs the Complainant’s manager raised a concern with the Complainant about a €100 claim and about the Complainant’s figures for on-call texts and calls. The manager accepted the Complainant’s explanation that he thought he had claimed for the €100 correctly, the manager explained the procedure going forward and that he was prepared to draw a line under it. The manager then asked the Complainant had he ever claimed for a call or text where he had not received a call or text. The Respondent maintained the Complainant responded “maybe, I don’t know”. The Manager asked the Complainant to check his figures for on-call texts and calls andprovided him time to do that.

At a second meeting that day at circa 16:00hrs, the Respondent advised there were some 28 texts claimed for which there were not requests for assistance and that the Complainant asked what happens now. The Manager advised that he needed to speak to HR. HR advised the manager that the matter would need to be investigated. When this was explained to the Complainant the Complainant offered to refund the money that the manager felt he had overcharged for, and where the manager concluded that he would check the figures. The manager denied that he had received an instruction from the COO to seek the Respondent’s resignation.

The Respondent advised there was then a third meeting at 18:15hrs where the manager expressed that he still had concerns with the figures and that he would be commencing an investigation into this matter. It was at that point the Complainant advised he was resigning his post. The Respondent submitted that the manager did not confer with the COO on this matter and therefore the allegation that he said the COO wanted the Complainant gone was not correct.

The Respondent submitted that the Complainant chose to resign his position where his manager responded that if he wished to proceed to resign he needed to provide his resignation in writing. The Respondent contended that a letter was then written by the Complainant in an open plan office and the manager did not dictate to the Complainant what to say in that letter. The Respondent submitted a copy of the Complainant’s letter of resignation at the hearing and maintained the wording in that letter of resignation is not consistent with a complaint that the Complainant had been coerced into resigning. The Manager explained when the letter was submitted they shook hands at that point.

The Respondent advised that the Complainant’s manager called to the Complainant’s house at around 20:00hrs that evening to collect the company’s laptop, and they again shook hands. The manager denied that the Complainant sought to rescind his resignation at that time or that he told the Complainant it was too late. Over the following days there was an exchange of texts between the Complainant and this manager. Copies of these texts were submitted at the hearing where the Respondent advised that when the manager informed the Complainant that he would receive his final payment and any outstanding holidays the Complainant sent a text back thanking the manager and advising “that has helped me calm down a bit… Still mad at myself for not knowing better and I’m sorry for letting you down… Thanks again”. The Respondent also advised on 30th November 2017 the manager received a text from the Complainant asking to collect his P 45 and the letter for his dole. The Complainant also asked in this text that the letter should say “there is no longer a job for him… But not that I resigned because they would make me wait 10 weeks if I resigned. It doesn’t have to be from HR… If you could that will help the audits. Thanks”. The Respondent advised the manager did not reply to this text as it was not correct there was no job for the Complainant.

The Respondent submitted that on 1st December 2017 the Complainant’s manager received a further text message asking the manager “can you let me know what day is okay to call up… I have to open the claim ASAP to get started… Thanks”. The manager responded saying the Complainant’s P45 and letter would be in the reception and it was agreed the Complainant would collect it after 4pm that day. The Respondent submitted that the tone and content of the texts is not consistent with the Complainant’s complaint raised to the WRC five and a half months after the event that he was dismissed or coerced into resigning.

The Respondent further advised that during the month of December 2017 the Complainant was in contact with HR in relation to a reference but he did not raise an issue in respect of the circumstances surrounding his resignation. It further contended that for a period of five and a half months after his resignation the Complainant never raised an issue about the circumstances surrounding his resignation with any other senior manager, manager, or supervisor. The first notice of an issue being raised by the Complainant that he was alleging he was unfairly dismissed was in a letter dated 14th May 2018 from the Complainant’s representative.

The Respondent advised at no time did the Complainant raise an issue prior to his resignation, or after his resignation notwithstanding the fact he was aware of the company’s policy set out in the Employment Handbook which he had signed.

At the hearing the Respondent called a HR representative as a witness. The HR representative advised she had received concerns from the manager in relation to the Complainant claiming for expenses he was not entitled to. HR explained the manager needed to conduct thorough investigation and if he undertook that investigation that would be his end of the process. He was advised not discuss the matter with the CTO as the CTO would be involved in the next stage. HR advised the manager he was to begin an investigation.

In response to the assertion that the Respondent had recruited another person as part of its preparations to dismiss the Complainant, the Respondent advised that the company was expanding by 13 shops and in November 2017 more people were required at the help desk. It advised that the business was substantially growing and had increased its IT presence in store where there was over 6,000 new IT devices and this would increase the call rate.

The Respondent therefore denied that the Complainant was unfairly dismissed and maintained that the Complainant decided to resign prior to conducting an investigation of his expense claims for dealing with out of hours texts and calls.

In its submission to the hearing the Respondent referred to case law in respect of constructive dismissal. It was not contended by the Complainant that this matter was a constructive dismissal, it was alleged by the Complainant that it was an unfair dismissal in that he was told he had no option but to resign, and was not provided with fair procedures before the Respondent had decided the Complainant was in breach of the expense procedures. The Respondent also referred to WRC (ADJ-00005216) where it was highlighted that a resigning employee needs to raise particular grievances with an employer prior to a resignation if those circumstances are to form the basis of the subsequent claim.

CA-00019376-002 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent submitted that as per the Complainant’s contract of employment that the Complainant and the Respondent are required to give not less than one month’s notice to each other in the event of a termination of the contract. The contract provides for the Respondent to have sole discretion that it could make payment in lieu of notice. The contract also provides that the Complainant is not entitled to payment in lieu of notice if the Respondent otherwise had been entitled to terminate the appointment without notice.

The Respondent advised that the Complainant resigned his position with immediate effect on 28th November 2017, left this place of employment on the same date, and that in addition to his month’s pay in November 2017 the Respondent also paid the Complainant for a full month in December 2017. The Respondent submitted a copy of the Complainant’s payslips for November and December 2017 which indicated the Complainant had been paid for the full month of November, which included his two extra days holidays, and for the full month of December 2017.

It therefore maintained that it had met its obligations under the Complainant’s contract of employment.

CA-00019376-003 Complaint under section 27 of the Organisation of Working Time Act, 1997      

The Respondent submitted that the Complainant’s contract of employment states he has an entitlement to 20 days paid holiday in each leave year. The leave year is calculated form 1st January to 31st December. The Respondent submitted leave records that show the Complainant had a total of 20 days annual leave, and five additional days leave in 2017. The additional five days arose because the Complainant had worked five bank holidays. The Respondent further advised that the Complainant had taken 20 days annual leave and three additional days leave prior to his resignation on 28th November 2017. The Complainant was paid in his November pay for the 29th and 30th November 2017 which compensated him for the two outstanding days annual leave entitlement.

The Respondent therefore maintained that the Complainant was provided with all his annual leave entitlements.

Findings and Conclusions:

CA-00019376-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977  

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

In this case it is contested as to whether the Complainant had resigned, or whether he was forced to resign and therefore was unfairly dismissed.

The parties agreed that there was a concern with regards the Complainant’s submission of expenses. The Complainant submitted that on the 28th November 2017 when these matters were being discussed with his manager his manager told that him that the COO had said the Complainant was gone. On that basis the Complainant submitted his manager advised him that he would be better off resigning his position. The manager has refuted that he told the Complainant to resign. A letter of resignation was submitted to the manager that evening and this letter of resignation is not disputed between the parties. What is in dispute is that the Complainant maintains he was forced to resign, that the manager dictated the letter of resignation and asked the Complainant to sign it, and that the Complainant subsequently sought to withdraw his resignation later that evening, but his manager refused to accept a withdrawal of the resignation. The manager denied this sequence of events and has maintained it was the Complainant who decided to resign rather than be subject to an investigation.

The evidence presented further supports that the Complainant did speak with HR about the situation the following day, was told about the appeals process but having considered matters did not believe the process would be fair and therefore felt under pressure to resign. Text messages sent by the Complainant to his manager on 30th November and 1stDecember 2017 do not indicate that the Complainant was seeking to rescind his resignation.

Whilst I acknowledge that the Complainant was stressed and anxious about the situation that occurred on 28th November 2017, there is nothing to suggest that following his realisation later that evening that he felt he had been treated unfairly, which is at the centre of his complaint, that he sought to redress the situation and formally withdraw his resignation. It may be that he felt under pressure to resign but following issuing the resignation letter there is no corroborating evidence that he pursued an approach to rescind it, and that when asked the Respondent refused to reconsider the resignation. A review of the texts the Complainant sent to his manager on 30th November and 1st December 2017 indicates he was following through with his resignation. These emails were cordial in nature and thanked the manager.

I have also considered the assertion that the Respondent had recruited other staff in preparation of dismissing the Respondent. I am satisfied the response from the Respondent is credible in that the recruitment of a new member of staff was for genuine reasons to address the growing demands with increased technology being introduced across the business.

I therefore conclude that when the Complainant was advised matters were to be investigated he decided to resign and did not at any stage seek to rescind that position until some five and a half months later. As he did not raise a concern with HR the following day when talking to them, and where he has not exhausted the internal procedures regarding the investigation, which may not have decided to dismiss him, I do not find the acts or omissions of the Respondent amount to an unfair dismissal. I find the Complainant decided to resign and never sought to formally rescind his resignation within a reasonable timeframe. Indeed, a month later he received a final payment of wages and never sought to raise concerns at that stage.

CA-00019376-002 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 4(2)(b) of the Minimum Notice & Terms of Employment Act, 1973 states if the employee has been in the continuous service of his employer for two years or more, but less than five years, that the notice to be given by an employer to terminate the contract of employment of his employee shall be two weeks.

Having considered the evidence presented I find the Complainant was paid for an extra four weeks.

In addition to the Complainant receiving a further months’ pay in December 2017, as I have found that the Complainant resigned, I do not uphold this complaint.

CA-00019376-003 Complaint under section 27 of the Organisation of Working Time Act, 1997      

Section 19(1)(a) of the Organisation of Working Time Act 1997 states an employee shall be entitled to paid annual leave equal to 4 working weeks in a leave year in which he or she works at least 1,365 hours.

Furthermore Section 23(1)(a) of the Act states where (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

Having considered the evidence presented I find that the Complainant resigned from his position on 28th November 2017. At that time, he had two days annual leave due to him. Based on the evidence presented by the Respondent I find that the Complainant was paid for the 29th and 30th November 2017 as depicted in his payslip. I therefore find that the Complainant did receive his entitlements under the Act.

Decision:

CA-00019376-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977  

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 this complaint of unfair dismissal not to be well-founded and accordingly it is not upheld.

CA-00019376-002 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act.

As I have found the Respondent is not in contravention of the Act for the aforementioned reasons, this complaint is not upheld.

CA-00019376-003 Complaint under section 27 of the Organisation of Working Time Act, 1997      

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint under Section 27 of the Organisation of Working Time Act, 1997.

As I have found the claim is not well founded for the aforementioned reasons I do not uphold the complaint.

Dated:   6th August 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney