Complainant

Respondent

Anonymised Parties

A Supervisor.

A Shipping Company.

Representatives

Catherine Fitzsimons-belgaid FreshThinking

Lisa Conroy Peninsula Group Limited

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-00017010-001

24/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00017010-002

24/01/2018

The Complainant was employed by the Respondent company from 2006 until 2017. He says that he was dismissed in October 2017 by being coerced into writing a letter of resignation from the company. He says he would not have done this voluntarily. He is therefore claiming dismissal by way of constructive dismissal under Section 8 of the Unfair Dismissals Act, 1977.

He also says that he is owed two week’s pay in lieu of notice, having received 4 week’s pay, but says he was owed 6 weeks by virtue of his length of service. His complaint here is taken under the terms of Section 11 of the Minimum Notice and Terms of Employment Act, 1973.

The Complainant says that he commenced work with the Respondent company on the 4th April 2006 and that he was promoted to the role of Supervisor in 2008.

He says that he served the business very well and was rewarded with substantial wage increases and frequent recognition and praise by the Respondent.

He says that there had been a number of issues associated with his performance from 2015, but that on the 20th October 2017 he was asked to attend a meeting in the General Manager’s office at 11.00am. He says he was asked as to “how things were going”, to which he responded that he thought all was going well. He says that in response the General Manager banged on the table with his fist, called the Complainant a liar and put him under pressure to tender his resignation in writing.

He says that the day before the resignation/dismissal he received an email from the Respondent concerning loading/unloading of a particular container of goods about which there were significant problems. He said that he had no one to go to about these difficulties and that this led to him writing his resignation under duress.

He says that the company had been declining in terms of clients, and therefore income, over a number of years and that this had led to a reduction in the workforce.

With regard to CA-00017010-001 -The Unfair Dismissal Complaint:

The Respondent acknowledges the excellent performance of the Complainant from his commencement on the 4th April 2006 and gave the Complainant substantial increases in pay in line with his responsibilities in the period from July 2015 up to January 2016.

He says that from the end of 2015 onwards the Complainant’s performance declined and that he failed to address these performance issues. This resulted in the Complainant being issued with a verbal warning on the 7th December 2015.

He says that there were meetings to discuss the Complainant’s performance

He says that on the 4th July 2017 there was a meeting to discuss further specific complaints and that this resulted in a written warning being issued to the Complainant.

He further says that as the expected improvement in performance did not materialise, a second written warning was issued to the Complainant on the 21st July 2017.

He says that on the 19th October 2017 a complaint was received from a client with respect to the performance of the Complainant.

A further meeting was arranged for the following day, the 20th October, at which the Complainant arrived with his resignation in hand. He says that he did not coerce the Complainant in any way in relation to that.

They say that a significant contract was lost to the company due to the choice of contract haulier that the Complainant made, even though he was under strict instructions not to employ this haulier. They say the cost to the company was €250,000.

They say that at this final meeting on the 20th October 2017 that further issues of non-performance were raised with the Complainant in relation to early morning checking of goods inwards and dispatched. Because of his poor performance in this, serious issues arose with their shipping partner on the Continent leading to business and reputational damage.

They say that there was nothing to do following the Complainant’s resignation but to hire a replacement in the role.

They say there was no Unfair Dismissal and say that if the Complainant is alleging that his resignation was not voluntary, then the burden of proof is on the Complainant to prove this.

They cite the case of Nicola Coffey v. Connect Family Resource Centre Ltd (UD 1126/2014), where it was held by the Employment Appeals Tribunal that the bar for constructive claim is very high”.

In A General Operative v. A Religious Society (ADJ:00002814, it was held by the Workplace Relations Commission that in claims of Constructive Dismissal:

“The critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment …. In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.”

They say that the resignation ahead of the final meeting was a result of the Complainant making his own decision knowing that he had received a series of recent warnings about his performance and that he pre-empted the discussion by resigning.

They say that he had not ever used the Grievance Procedure in respect of any of his previous warnings.

They say for these reasons the complaint of Unfair Dismissal must fail.

With regard to CA-00017010-002:

They did not give to the Complainant the 6 weeks he says he is due in Notice under the Minimum Notice and Terms of Employment Act, 1973.

CA-00017010-001:

I find that the onus of proof for constructive dismissal is not discharged by the Complainant. The Respondent had a right to have the conversations about the Complainant’s performance and to issue disciplinary warnings as appropriate. The Complainant never challenged these warnings as they arose, and by not doing so accepted the validity of the warnings. I find that because they had mounted up he wished to avoid the meeting to discuss further performance issues and resigned. The Respondent had not indicated that dismissal/resignation should or would be the outcome of the meeting.

CA-00017010-002:

I find that the 6 week’s pay due in “pay in lieu of notice” should have been paid to the Complainant. He received 4 weeks, leaving a balance of two weeks due.

CA-00017010-001: I find that the complaint fails.

CA-00017010-002: I find that the complainant is owed 2 week’s pay in lieu of notice.