ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006045

Parties:

Complaint:

Date of Adjudication Hearing: 21st February 2018 and 08/08/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,and following 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.

This Hearing was scheduled on 21st February 2018 and adjourned for 4 weeks to enable the Parties to engage in direct discussions. I wrote to the Complainant’s Legal Representative on 13th June 2018 seeking an update. I received a response on 14th June 2018 seeking the case be relisted for a further Hearing. This was scheduled for 8th August 2018.

Preliminary Issue. – Date of Dismissal.

This complaint was submitted to the Workplace Relations Commission on 26th October 2016 stating he had to leave his job (constructive dismissal) and he stated he terminated the employment on 3rd October 2016.

The Complainant’s Representative, named, sent an email dated 10th November 2016 to the WRC seeking to amend the date of resignation to 3rd November 2016 stating the date of 3rd October 2016 on the Complaint Form was incorrect as this was the last day on which he was able to work, he was injured at work and on sick leave.

I note the Complainant claimed Occupational Injury Benefit from the Department of Social Protection from 3rd October 2016 – confirmed by the Department. However I note another letter from the Department of Social Protection of 18/11/2016 which states the Complainant had confirmed to them he had been employed from 8/10/2015 to 17/11/2016.

I note that the P45 issued to the Complainant has a date of ceasing employment as 17/11/2016.

I note that the Complainant sent an email dated 20th October 2016 to the Respondent, named, which included the following “ Therefore I am requesting you to take this as notice that at this point

I have lodged a constructive dismissal case to the Work Relations Commission for investigation in order to mitigate my losses. I may also proceed further with this case in other forums. Could you please furnish my P45 and outstanding wages to me”

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 without giving prior notice of the termination to the employer”.

Therefore I find the date of dismissal was 20th October 2016 when the complainant gave notice to his Employer that he had lodged a complaint of constructive dismissal with the WRC and he requested his P45. This complaint was received by the WRC on 26th October 2016. I note the decision of the Employment Equality Tribunal in Walsh v Health Service Executive UD 501/2007 where they held the date of dismissal in constructive dismissal cases is the date on which the Complainant submits their resignation.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant was employed as a Storeman from 8th October 2015 and his duties included, Storeman, Driver and Deliveries. On the morning of 3rd October 2016 there were five named employees, as well as the Complainan, on duty. On that morning the Complainant raised the issue of being short staffed with a Director of the Company, named. He suggested another named employee be called in to help. The Complainant returned to his duties and the Owner and Director of the Company returned to his Office. The first Director approached the Complainant but he became very aggressive and hostile. The Complainant stated this named Director then pushed him. The Complainant put his hands out to put space between him and this Director. This Director then punched the Complainant with his right hand into the Complainant’s left rib and to wrestle the Complainant to the ground in a headlock. Another named employee sought to intervene but was unsuccessful. The Complainant was released and the Complainant informed the named Owner of the incident and he left the Premises.

The Complainant attended his GP who referred him to a named Hospital where a fractured rib was diagnosed.

He did not feel safe in returning to work.

The Complainant argued that as he had been assaulted by the Director and Manager of his Employer it was reasonable for him not to participate in the proposed investigation prior to resigning as the Investigator proposed was not independent of the Respondent and it was a Director and son of the Respondent whom carried out the assault. There was no possibility of a fair and independent investigation.

The Complainant stated that he had been in receipt of Benefits from the Department of Social Protection and that he had commenced employment on 20th February 2018 .He stated he was seeking compensation.

The Complainant was requested to forward a statement from the Department of Social Protection to cover the period 3rd October 2016 to the date of the Hearing on 8th August 2018. This was not provided. This was required to determine the Complainant’s availability for employment.

The Complainant was requested to provide evidence of mitigation of loss as required by Section 7(2)(c) of the Act. The Complainant did not do so.

The Complainant was requested to forward evidence of the employment which he stated he commenced on 20th February 2018. This was not provided by the Complainant.

SUMMARY OF RESPONDENT’S POSITION.

The Respondent is a supplier of fruit and vegetables. The Complainant was employed in a position of Storeman from 8th October 2015. On Tuesday 3rd October 2016 the Warehouse was short staffed. One employee was on annual leave, a second was on unauthorised absence while the Complainant arrived late for work. On his arrival he mentioned to another employee, named, that he “would not be here long”. He was stressed and agitated on his arrival at work. He became more stressed when he saw the environment caused by a shortage of staff and he complained to a named Salesman. The Complainant alleges he was assaulted by this employee but the CCTV footage does not support this – copy provided to the Complainant. The Complainant also asserted that as a result of the alleged assault he suffered broken ribs, but the CCTV footage shows the Complainant working normally throughout his shift with no indication of pain. No other employee reported any alleged assault on the shop floor that day. A named employee was working next to the Complainant and the Employee who allegedly assaulted him and she did not witness any assault.

There followed a series of texts between the Complainant and the named Sales Manager. Commencing at 9.01 ----until 16.12 when the Complainant texted he had a Doctor’s appointment. The sick cert confirms the Complainant was suffering from a “superficial injury of thorax” and also queried if he had sustained a fracture and deemed him unfit for work until 10th October 2016.

The Complainant drove to work on 7th October 2016 to collect his wages. There was an exchange of emails between the Complainant and the Respondent concerning his wages which he disputed. The Complainant also in an email dated 12th October 2016 stated he had raised a grievance on 7th October 2016 which he was assured would be investigated. The Respondent in an email dated 12th October stated they had consulted with a named external party who is non-biased and works in an unrelated capacity to the Respondent and associated businesses who was willing to meet with the Complainant in a location of his choice to take a statement from him.

The Complainant made a formal data access request on 13th October 2016 and also a request for CCTV footage relating to 3rd October 2016. The CCTV Footage was provided on 18th October 2016.

The Complainant, in an email dated 20th October 2016, raised the independence of the nominated investigator. The Complainant proposed another named independent Investigator and in the same email the Complainant gave notice of the termination of his employment.

The Respondent in an email dated 25th October 2016 requested the Complainant to reconsider and stated they were willing to use a completely independent investigator. The Respondent received an email form his named Union Representative from UNITE requesting that all correspondence should be sent to the named Representative. The Complainant requested his P45 by email on 25th October 2016.

The Complainant lodged a complaint with the WRC on 26th October 2016.

The Respondent asserted there was no evidence of an assault and the CCTV footage does not support the assertion. There are no witnesses to the alleged assault. The Respondent stated that while a named Employee in a text to the Complainant does accept an assault took place yet this employee was not on the shop floor but in a different location. There was no evidence the Complainant fractured a rib and the Respondent has acted reasonably in rejecting the investigator proposed by the Complainant when the Complainant had put forward no grounds to dispute the impartiality of the Investigator proposed by the Respondent and the Complainant had lodged a complaint with the WRC before the Parties could agree an investigator acceptable to both.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence, submissions from both Parties 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   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. I find the Complainant has not established there was any breach of the Contract of Employment by the Employer.
  • The Complainant must have acted reasonably in tendering his resignation. I note that the Complainant had been provided with CCTV footage of 3rd October 2016. I note that the Complainant did not dispute the evidence of the Respondent which did not show any assault had taken place. I further note that at the initial Hearing on 21st February 2018 the Complainant did not provide any medical evidence from either his Doctor who saw him on 3rd October 2016 or from the Hospital where he alleged he had been referred for X-ray. I note the medical report that was furnished to the resumed Hearing on 8th August 2018 dated 3rd April 2018 from a named GP who I also note was not the named Locum he saw on 3rd October 2016. I note from evidence presented at the Hearing that in fact the Complainant did suffer a fractured rib and this is verified in a medical certificate dated 10th July 2016 prior to the alleged assault on 3rd October 2016.

• However I note the text message from the named General Manager of 3rd October 2016 at 09.01 which states as follows – “I know lad, it shouldn’t have happened….” This was in response to a text from the Complainant which states “Then management shouldn’t assault staff he came down he hit”

• I further note that the Respondent appointed an Investigator to conduct an independent investigation into the issue. The named Investigator was not acceptable to the Complainant and they proposed a further name. However prior to an agreement between the parties of an independent investigator to be appointed the Complainant submitted his resignation on 20th October 2016.
• I note the Complainant did not provide the Adjudication Officer with the requested information from the Department of Social Protection, - his mitigation of loss or verification of the employment he stated he commenced on 20th February 2018. On that basis I am unable to calculate if indeed the Complainant did suffer any financial loss or indeed if he was available for work given the evidence from the Department in relation to the Complainant’s application for Injury Benefit.

Accordingly I find the complaint of constructive dismissal is not well founded.

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.

In accordance with Section 8(1)(c) of the Act, my findings above I declare this complaint of Unfair Dismissal by reason of constructive dismissal is not well founded.

Dated: 23rd January 2019

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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