ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023554
Parties:
| Complainant | Respondent |
Anonymised Parties | Salesperson | Retail outlet |
Complaint(s):
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-00030115-001 | 07/08/2019 |
Date of Adjudication Hearing: 23/10/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the of Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that she satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for him to resign - that the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment (by reason of Constructive Dismissal) by way of Workplace Relations Complaint Form submitted within six months of the Dismissal I confirm that the Complainant is within time.
Ordinarily the Unfair Dismissals Acts 1977 to 2005 do not apply to persons who have less than twelve months service working under a Contract of Employment per section 2 (1)(a) of the 1977 Act. However, the requirement of one year of continuous service does not apply where the dismissal results wholly or mainly from an employee’s Trade Union membership or activity – as set out in section 6 (2). I am therefore satisfied that I have jurisdiction to hear the within matter.
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would have regard for the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v- Ulster Bank Limited Wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
The Complainant has initiated a complaint by way of workplace relations complaint form dated the 7th of August 2019. The Complainant asserts that he was Unfairly Dismissed and although he does not have twelve months service, the Complainant has specifically stated that his Dismissal arises as a result of his Trade Union membership or other Trade Union activity. In addition, the Complainant is saying that he is Constructively dismissed which means he must show that he no option other than to resign his position. So the burden of proof rests with the Complainant to show that the conduct of his Employer in connection with or in reaction to the Complainant’s trade Union activity was such that the Complainant had to resign. |
Summary of Complainant’s Case:
The Complainant gave his evidence in person. |
Summary of Respondent’s Case:
The Respondent attended with representation and provided me with some supporting documentation. |
Findings and Conclusions:
I have carefully considered the evidence herein. The Complainant tendered his resignation on the 30th of May 2019. I have had the email opened to me and the Complainant has been questioned on foot of the content of this email. I have to concede that, on it’s face, there is nothing to suggest that the Complainant resigned his position by reason of his Employer’s attitude or reaction to his Trade Union activities. I know that sometimes the reasons offered and articulated in correspondence might belie a concealed truth. The Complainant was afforded an opportunity, through his oral evidence, to establish what conduct connected to his Trade Union membership (or otherwise) brought him to the point where he had no alternative other than to tender his resignation. The Complainant gave evidence of an employment period from November 2018 to May 2019 which certainly had its ups and downs. The Complainant worked in a retail shop primarily dealing with the second-hand trading and repairing of technological devices such as phones and laptops etc.. The Complainant worked alongside a number of in-house colleagues all of whom he appears to have a good relationship. Overseeing their work was an area Manager Ms. R. In March of 2019 a workplace investigation was conducted into the operation of staff discount in the store. The Complainant describes the manner of this investigation to have been very heavy handed and accusatory. Ultimately the investigation found that there had been no deliberate wrong-doing and that the staff had been inadequately trained. It was at this point that the Complainant first suggested that he might join SIPTU and openly talked about this fact with the other members of staff. I fully accept that the Complainant was prompted to consider Union membership as a direct result of the way in which the Employer had conducted the investigation without respect for the Employee or the principles of fair procedure – as he perceived it. Then, on the 7th of April 2019 the Complainant says that he was dismissed over the phone by Ms. R. I note that Ms. R categorically rejects this version of events but I am satisfied that there was a row of some sort over the phone and that at the very least Ms. R had warned the Complainant that his employment was in jeopardy if he was absenting himself from the workplace without explanation. The Complainant felt that he was seeing a worrying pattern of Employer behaviour which was reactive and without structure and which showed no respect for the Employee and the proper procedures to be followed. In a probationary meeting subsequently held with the operations Manager, the Complainant raised the issues he had with Ms. R and to some extent his worries were ameliorated when he was advised that a new Area Manager was taking over the store and as part of a gesture of goodwill the Operations Manager back-paid a sum of money that was to be paid. I understand that Management believed that this was a line in the sand. It is noted that the Complainant was also concerned at his level of remuneration and the hours he was working. Whilst his Contracted hours were for 25 hours a week he was doing closer to 35 and he had come to rely on this salary. The Complainant was looking for pay raises and he talked to G about this. In that conversation he was told that the best chance of a pay raise was if he became an Assistant Manager. The Complainant set his sights on this target and returned to the workplace under the new area Manager with some enthusiasm. I accept that this was never a promise made and that the Complainant might have misunderstood what was being suggested. If he wanted to be Assistant Manger he would have to interview for this post like anyone else. However, all this was happening against a backdrop of uncertainty for the company. In particular, there were redundancies being implemented in sister stores in Monaghan, Shannon and Douglas and there was a company-wide directive that all staff should only work Contracted hours. As part of the re-structuring process, the Complainant was advised that his 25 hours per week was all that the company could guarantee if the Complainant wanted to stay in this particular store and that he would have to move to the Finglas store to get more hours. Her was given this information by his new Manager - J. The Complainant was greatly aggrieved at the manner in which this information was revealed to him. His employer J, he says, knew that he was recovering from a medical procedure. In addition, he believed he was being singled out for a reduction in hours and/or a move to Finglas as a supervisor. J says that he was aware that the Complainant had had a procedure but had understood the Complainant was well enough to come in for a chat. Also he needed to relay the information in person as both he and the Complainant were heading into a holiday period and their paths would not cross for a few weeks. This meeting happened on the 24th of May 2019. The Complainant went home to consider his options and to talk to his partner. Ultimately the Complainant’s greatest concern was the reduction in hours being proposed in the shop that he wanted to work in (as being convenient to home). I accept that all his colleagues were being faced with the same reduction to Contract hours and in this regard he was not being treated any differently than them. The Complainant seemed offended that he had been offered more hours in another (further away) store but I find that this was an attempt by management to ensure his salary would not take a drop and was not meant to be seen as some sort of punishment. After giving himself some time to consider his position the Complainant resigned his position 5 days later on the 30th of May 2019. There is nothing in the email tendered by the Complainant to Mr G, that suggest that he felt compelled to resign by reason of his Employer not approving of his Trade Union activity. This allegation is a non-starter. There is no evidence that the Complainant had any Trade Union ties which his Employer was even aware of. In fact, the Respondent witnesses gave evidence to say that they had no idea if he was or was not in a Trade Union when he resigned. I accept their evidence in this regard. The Complainant felt compelled to resign when his Employer had made the decision to reduce the number of hours it was able to make available to the Complainant. This decision, at the end of a protracted period of strain in the workplace, served as a catalyst to tender the resignation. The Complainant has failed to demonstrate that his Trade Union membership or activities brought about the termination of employment or that his Employer’s response to his TU activities gave rise to his tendering his resignation. Thereafter, as the Complainant does not have 52 weeks of service, I do not have the jurisdiction to consider this claim. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00030115-001 – The Complainant was not Unfairly Dismissed and his claim under these Acts, fails .
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Dated: 17/12/19
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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