ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00014273

Parties:

Complaint(s):

Date of Adjudication Hearing:  07/01/2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 13 of the Industrial Relations Acts 1969] 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).

Ca—00018921-001

 Unfair Dismissals Act, 1977

Background:

The claimant is seeking adjudication on a complaint brought under section 8 of the Unfair Dismissals Acts 1977 – 2007.

The respondent disputes the claimant’s allegation that he was constructively dismissed.

Summary Claimant’s Position

The Claimant worked for the respondent from August 2008 until his resignation in October 2017 after a series of events.

The claimant commenced employment with the respondent at their Wilton outlet in Cork as a Night packer and after a number of years training and hard work the claimant was promoted to Fresh Food Manager at the respondents Paul Street outlet in mid-2012. Following some personal and professional difficulties the claimant found himself from November 2014 until January 2016 in the respondents Thomas Street outlet in Dublin as a Team Leader. The claimant had at this stage been requesting a transfer back to Cork for personal reasons. The claimant joined the respondents St Finbarr’s outlet in Cork as a team leader in January 2016. Following an incident, the claimant was moved against his will to the respondents Dennehy’s Cross outlet in August 2016.

The claimant had booked 2 weeks holidays to visit family overseas, the holidays were to commence from October 22nd, 2016.

In early September 2016 the claimant received a phone call stating his father was gravely ill and needed a kidney transplant.

In an effort to make arrangements should he,(claimant) be a suitable donor the claimant contacted his Area Manager who in turn referred him to the store Manager, with whom the claimant states he was not getting on well with.( A large number of meetings had taken place between the claimant and Store Manager)  The claimant explained the situation to the Store Manager and he informed the claimant that he would have to ask the Area Manager. The claimant was offered a lifestyle/career break.

On October 13th, 2016 an incident occurred, during which a shoplifter bit the claimant on the hand drawing blood.

On October 19th, 2016 the claimant was invited to attend a meeting with the Store Manager to discuss the incident of October 13th. It was also around this time that the lifestyle/career break was approved.

The claimant felt that the line of questioning taken by the Store Manager was strange and became angry at the refusal of the Store Manager to answer certain questions in relation to the outcome of meetings. The Store Manager left the meeting and had asked the claimant to leave the premises. The claimant refused to leave and demanded to speak to the Area Manager. The claimant was subsequently informed by the Store manager that the Garda were called to remove him from the premises. The claimant proceeded to write his resignation and gave it to the note taker who was in attendance at the meeting and left. The claimant’s lifestyle/career break commenced on October 22nd, 2016.

The claimant returned to Ireland in February 2017 and contacted the Area Manager seeking his p45. The Area Manager asked him to meet and reconsider his resignation and offered to place him in a different store. The claimant accepted this offer. The claimant was also absent from work at this time on medical grounds/ post-operative recovery. During this time off the claimant attended Welfare meetings with the respondent and felt that these meetings were more focused on investigations and the last incident before he took his lifestyle break.

The claimant submitted a fitness to return to work certificate in October 2017 and began work soon after that. The claimant subsequently received a letter inviting him to attend an investigation meeting to obtain further information regarding an allegation that he had breached the respondent’s dignity at work policy during the meeting of October 19th, 2016. It was on receipt of this letter that the claimant upon reading it instantaneously expressed a decision to resign. The claimant further submitted that he was asked to include that “nobody pressurized me” on his resignation notice.

Summary of Respondent’s position:

The respondent submitted that no dismissal took place and that the claimant had resigned and in fact resigned on more than one occasion.

The respondent further submitted that at no stage did the claimant utilise the respondent’s internal procedures to raise a grievance in relation to aspects of his employment or allegations of bullying and harassment in the events surrounding his decision to resign, on two separate occasions.

It was submitted that the respondent has supported the claimant with numerous requests and acted in a fair and reasonable manner throughout the course of their dealings with the claimant and furthermore refused to accept the claimant’s first resignation and even offered the claimant a position at an alternative outlet, which he accepted. The Respondent respectfully requests that the Adjudicator find the claims be rejected.

Findings:

Both parties were present at the hearing.

In dealing with claims under the Unfair Dismissals Acts 1977 – 2015, were the complainant is reliant on an argument of “Constructive Dismissal”, it has been well established that the onus and burden of proof rests with the complainant.

It has been well established that to substantiate an argument for constructive dismissal the claimant must successfully demonstrate that the employer had acted in such a manner as to breach a fundamental term of the contract of employment or the employer had acted so unreasonable as to make the continuation of employment intolerable.

I find that it is clear the claimant had a difficult working relationship with an identified store manager. This is supported not only by the claimant’s statement but also by a witness to the meeting of October 19th 2016 and from reading the witness statement the manner in which the meeting was carried out and the manner in which it deteriorated left a lot to be desired and its obvious there is larger issues present when the note taker has to intervene and ask the investigator and claimant to be more professional.

I find at no stage did the claimant raise a grievance in relation to the difficulties he was having and at no stage did the claimant use the respondent’s policies and procedures to highlight these issues.

I find the claimant had ample opportunity to avail of the respondent’s grievance procedure but failed to do so.

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 claimant has failed to substantiate his claim for constructive dismissal and his employment was terminated by means of his own resignation.

Industrial Relations Act 1969

Ca-00018921-002

I find the claimant’s failure to avail of the respondent’s grievance procedures also proves fatal to the claim brought under section 13 of the Industrial Relations Act 1969. Internal mechanisms should be exhausted where possible before a claim is forwarded for adjudication by the W.R.C.

I find once again that the claimant had ample opportunity to avail of the respondent’s policies and procedures but failed to do so.

Decision

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I find I cannot recommend concession of the claim  and it falls

Claims under Section 18 of the Parental Leave Act 1998:

CA-00018921-003/-004

The claimant did not at any time apply for carers leave and as such does not have a valid claim.

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 find the claim is not well founded and falls.

Dated:   2nd May 2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell