ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014936
Parties:
| Complainant | Respondent |
Anonymised Parties | An IT Manager | An IT Company |
Representatives |
|
|
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00019382-003 | 23/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00019382-004 | 23/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00019382-005 | 23/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019382-006 | 23/05/2018 |
Date of Adjudication Hearing: 20/09/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant was employed by the Respondent from 1st January 2017 until his resignation on 23rd May 2018. His title was that of Services Director. The Complainant was paid a gross monthly salary of €3,686.00. He lodged a complaint with the Workplace Relations Commission on 20th July 2018. The Respondent did not attend the hearing. Preliminary Matter Complainant's Status On his Complaint Form the Complainant had stated his position as, "Director/Company Secretary". In the statement he provided on the WRC Complaint Form, the Complainant also described himself as a director. When questioned about his status the Complainant stated although he was a director and shareholder, he had been paid a salary, from which PAYE and USC deductions were made. His salary was paid into his bank account as salary. He did not get any payment as a director, he did not get a Director's fee nor had he been given a Director's loan. The Complainant stated that he did normal every day work for the Respondent. His work was hands on and practical; systems design and delivery. He had to seek permission from his superiors to take leave. The Complainant stated that, he was never issued with a contract of employment or any document even outlining his terms and conditions of employment, despite having made several requests for same. Findings on Preliminary Point On the uncontested evidence of the Complainant I find that he was an employee of the respondent company; he was under control of others, importantly PAYE and USC deductions were made at source, he had to seek permission before taking lave and his work was what could be termed "everyday" work.
|
CA-00019382-003 Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The Complainant stated that he never received a contract of employment or any document even outlining his terms and conditions of employment.
|
Summary of Respondent’s Case:
The Respondent did not attend the hearing.
|
Findings and Conclusions:
I find the Respondent did not receive a contract of employment. Sec 3 (1) of this Act sates,“ An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment” I note that Sec 7 (2) (d) of the Act states, “compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Respondent has breached Sec 3 of this Act. I order the Respondent to pay the Complainant €400 compensation.
|
CA-00019382-004 Complaint under the European communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 – S.I. No. 36/2012.
Summary of Complainant's Case
The Complainant stated that the Respondent did no keep statutory employment records, e.g. annual leave records.
Summary of Respondent's Case
The Respondent did not attend the hearing.
Findings
I find the Complainant was not involved in Mobile Road Transport Activities and therefore this complaint is misconceived.
Decision
I find the complaint is unfounded.
CA-00019382-005 Complaint under the Parental Leave Act, 1998.
Summary of Complainant's Case
The Complainant states in his Complaint Form that he applied to take the two weeks statutory leave when his baby was born, in May 2018, but was told he was not getting any time off.
Summary of Respondent's Case
The Respondent did not attend the hearing.
Findings
Although the Complainant made this complaint under the Parental Leave Act, not the Paternity Leave and Benefit Act, 2016, I am satisfied that it is clear what breach he is referring to in his narrative.
Section 6 of the Paternity Leave and Benefit Act, 2016 states in relation to entitlement to paternity leave:
- (1) Subject to this Part, an employee who is a relevant parent in relation to a child shall be entitled to 2 weeks’ leave from his or her employment, to be known (and referred to in this Act) as “paternity leave”, to enable him or her to provide, or assist in the provision of, care to the child or to provide support to the relevant adopting parent or mother of the child, as the case may be, or both.
(2) Other than where section 12 applies, the period of leave referred to in subsection (1) shall comprise a single period of 2 weeks.
(3) Subject to subsection (4), only one person who is a relevant parent in relation to a child shall be entitled to paternity leave in respect of that child.
(4) Subsection (3) shall not operate to prevent paternity leave from being taken by a relevant parent referred to in paragraph (a) of the definition of relevant parent in section 2 (1) in respect of a child by reason only that paternity leave has prior to the adoption of the child, been taken in respect of that child by a person other than that relevant parent.
(5) Where the birth of a child is part of a multiple birth or a person adopts 2 or more children at the same time, a person who is a relevant parent in relation to the children concerned shall only be entitled to one period of paternity leave under this section in respect of the children concerned.
(6) Subsection (1) applies—
(a) in the case of a child who is, or is to be, adopted where the day of placement in respect of the child falls on or after 1 September 2016, or
(b) in any other case, where the date of confinement in respect of the child falls on or after 1 September 2016.
(7) A person may not avail of paternity leave under this Act where the person avails of adoptive leave under section 6 of the Act of 1995.
Section 28 of the Act states:
- (1) A decision of an adjudication officer under section 41 of the Act of 2015 in relation to a dispute between an employee and the relevant employer relating to any entitlement of the employee under Part 2 or 3 (or any matter arising out of or related to such entitlement) may include such directions to the parties to the dispute as the adjudication officer considers necessary or expedient for the resolution of the dispute, and if the decision is in favour of the employee then, without prejudice to the power to give such directions, the adjudication officer may order—
(a) the grant of leave to the employee for such period as may be so specified,
(b) an award of compensation (in favour of the employee to be paid by the relevant employer) of such amount, not exceeding 2 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed by the Minister for Jobs, Enterprise and Innovation, as the adjudication officer considers just and equitable having regard to all of the circumstances, or
(c) both such grant and such award.
Decision
Section 41(4) 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.
I order the Respondent to pay the Complainant €1,843.00 in compensation for the breach of this Act.
CA-00019382-006 Complaint under the Unfair Dismissals Act, 1977
Summary of Complainant's Case
The Complainant submitted that he was "frozen out" of the respondent company by not being invited to meetings and being ignored in any decisions being taken. A new employee, related to the owner of the company, was taken on and she began to undertake roles and responsibilities that the Complainant believes were his originally. The Complainant believes his leaving was somewhat orchestrated.
Matters came to ahead on24th May 2018 when the Complainant complained to one of the principals at a meeting that he felt he was being side-lined and not being treated fairly. The meeting became heated and the Complainant was told in crude language what he could do with himself. The complainant sent an email to his boss immediately following this meeting telling him that he was resigning.
Summary of Respondent's Case
The Respondent did not attend the hearing.
Findings
Definition of Constructive dismissal.
Sec 1(b) “the termination by the employee of his/her contract of employment with his/her 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 employment without giving prior notice of the termination to the employer”.
In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct.
In UD 1146/2011 the EAT held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.
It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve their grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”
In McCormack v Dunnes Stores UD 1421/2008: the EAT stated, “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.
In order to succeed with a constructive dismissal case the complainant must establish that the employer’s conduct/behaviour was such that the employee had no option but to resign their position. They must also ensure that they have given the employer an opportunity to deal with the allegation/ grievance before the decision to resign is taken. They must be able to assert their entitlement and reasonableness to resign their position.
I find in this case that, although matters were not good at work and the actions of the Respondent were, if as alleged, unreasonable, I do not believe the Complainant did all he could have done to address these problems before resigning. Although no formal grievance procedure was in place the Complainant should have, as a minimum, taken some time following the meeting of 24th May to assess the situation, make it clear to his principals that he had had enough and that he would have no option other than to resign, if his concerns were not addressed; instead he tendered his resignation immediately following a heated meeting.
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.
I find the complaint is not well founded.
Dated: 08/01/19
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Constructive dismissal, resignation |