Complainant

Respondent

Anonymised Parties

A Bar Manager

A Limited Company

Representatives

Self

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-00032584-001

29/11/2019

The complainant worked for the family that own the respondent entity for 8-years. He has been in receipt of bi-annual performance reviews all of which demonstrated that he had exceeded his revenue targets and as a result had received monetary bonuses.

On the 26th of June,2019 the complainant was suspended without notice, following an incident that occurred with his manager. The complainant accepts that foul language was used but states that it was only used in circumstances where he felt intimidated and trapped by the manager's behaviour. The use of foul language was only used in response to the manager’s aggressive behaviour towards him.

Since his suspension, the complainant feels that everyone in the workplace, and even people who live in his community are questioning why he was suspended from the workplace. He feels that his reputation has been damaged and that in turn has caused him and his family a great deal of stress.

On the 22nd of June the complainant submitted his statement to the respondent’s Area Manager setting out his version of what had happened earlier that day.

The complainant attended an investigation meeting on the 2nd July 2019. The minutes of that meeting were shown to the complainant and he was afforded the opportunity to make any amendments to them. He did avail of that opportunity.

The complainant was invited, by letter dated 7th of July 2019, to attend at a disciplinary hearing on the 9th of July 2019.

The complainant states that the only matter discussed during that meeting was the accuracy of the minutes of the investigation meeting. He wasn't afforded an opportunity to respond to the allegations that had been made against him. The notes of the disciplinary hearing submitted do corroborate his evidence.

He was notified by letter dated 11th of July 2019 that the disciplinary sanction being imposed was that of a final written warning. He was given the right to appeal that decision and was informed that his suspension had concluded effective from Friday the 12th of July 2019. The complainant returned to work on Saturday the 13th of July.

By letter dated 18th of July 2019 the complainant’s solicitors wrote to the respondent company Secretary setting out the complainant’s grievance and the complainant’s issues with the proposed appeals officer. The complainant does not accept that the respondent did not have sight of that letter until the 7th of August.

Between the 13th July and the 7th August, the complainant was unaware that the respondent did not have sight of a solicitor's letter and felt that he was being forced to work for a prolonged period of time whilst the respondent ignored his grievance. It wasn't until he received an email from the respondent dated 9th of August that he was informed that the respondent had only recently become aware of his solicitor's letter. However, at that juncture the complainant felt that he couldn't work for the respondent any longer and made the decision to resign his position.

The complainant accepts that the respondent requested that he rescind his resignation so that they could deal with his grievance. He also accepts that the respondent changed the appeals officer following his request to do so. However, it was too little. too late, and the damage had been done.

The complainant secured employment approximately 7 days after he resigned his position with the respondent.

The complainant commenced employment with the respondent on or around the 5th of September, 2011. The complainant resigned his position on or around the 20th of August 2019.

On 22nd June 2019, the respondent’s area manager Mr RM, to whom the complainant reported to directly, was disappointed with the performance of the complainant on that day and on the previous evening. In order to address this, Mr RM approached the complainant in the Duty Manager’s office in order to discuss these issues. During the subsequent discussion the complainant told Mr RM “to go f*** yourself I'm not a puppet on a string you can control”. The complainant, by letter dated 24th of June 2019, suspended with pay pending an investigation into his conduct.

The complainant was invited to an investigation meeting by letter dated 25th June 2019. The said letter outlines a number of matters of concern. This meeting took place on 2nd July 2019 and was conducted by the human resources executive Ms. US. The minutes of this meeting and the statements of both the complainant and Mr RM are submitted into evidence.

Following this meeting the matter progressed to a disciplinary hearing. The complainant was invited to the disciplinary hearing by letter dated 7th July. The disciplinary hearing took place 9th July 2019. The outcome of the disciplinary process was that the complainant was issued with a final written warning. The complainant was given a right of appeal. the complainant was requested to return to work on Saturday 13th of July 2019. He did return and continue to work until he resigned his position on 20th August 2019.

The complainant was offered the right to appeal the decision within 10 days of the date of the final written warning and chose to exercise that right. The complainant's solicitor wrote to the company secretary at his address by letter dated 18th of July. The solicitors for the complainant wrote to the home address of the company Secretary despite the complainant being instructed in writing to direct his appeal to the General Manager of the respondent. It is submitted therefore that regardless of any issues the complainant may have had with the General Manager conducting the appeal, the correct mechanism to commence the appeal was by writing to her at the premises set out in the final warning letter dated 11th of July 2019. It is submitted therefore that the complainant did not commence his appeal correctly. In addition, the company Secretary was on holidays when the letter arrived at his home address. When the company Secretary returned from holidays he discovered the letter. The following day he forwarded the letter to the Managing Director of the respondent by email. The letter was then passed to the human resources executive Ms US, who immediately replied, by email, to the complainant’s solicitor informing them that the respondent had only just received the letter and further stating that those involved in dealing with the appeal were on annual leave, explicitly stating that the respondent would not be in a position to reply fully to the correspondence until the week commencing 19th August 2019. Copies of the correspondence are submitted into evidence. The complainant’s solicitors did not acknowledge the respondents email of 9th of August but instead by letter dated 20th of August 2019 claimed that no action had been taken with regard to the complainants grievance and consequently issued the complainants resignation on his behalf.

The complainant at no time responded advising Ms US that he was dissatisfied with the timeframe proposed. Notably the address on this letter is different from the address on the letter issued to the company Secretary previously.

The respondent replied to the complainant’s solicitors by letter dated 21 August 2019 again pointing out that the letter of the 18th of July had only been received by the respondent on the 9th of August during which time the relevant members of staff dealing with the matter where on annual leave. The letter proceeds to request the complainant reconsider his decision to resign and explicitly asked the complainant to submit a grievance regarding the issues he felt were present. The letter proceeds to inform the complainant that an alternative appeals person had been appointed.

The complainant’s solicitor responded to the respondent’s letter by letter dated 26th August 2019. the complainant's letter incorrectly claims that the respondent acknowledged complainant’s letter of the 18th of July which was received by the respondent on the 18th of July. No such acknowledgment was made by the respondent. At no point in any correspondence with the complainant or the complainant’s solicitors did the respondent acknowledge receipt of the complaint letter dated 18th July 2019 on the contrary the respondent explicitly pointed out that the letter was not received by them until the 9th of August when it was sent to them by the company Secretary after he had returned from his holidays.

It is submitted therefore that the complainant’s resignation was prophet in an extraordinarily premature manner. The complainant has failed to engage in both the appeals process and the grievance process which were open to him despite being advised as to when these processes would progress and being advised as to the reason for any perceived delay noting that the complainant wrote to the company secretary with regard to his appeal rather than to the person and premises to which he was expressly directed should he wish to appeal the sanction imposed upon him.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

Section 7 (1)

Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”.

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“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.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”.

The complainant, who represented himself, did so in a most competent fashion and I found his evidence to be credible. He was most aggrieved that he was forced to work a total of 61 days without support from the Respondent’s HR department following the conclusion of the disciplinary process. His solicitor wrote to the respondent Company Secretary on the 18th July, 2018 raising several issues. The letter was sent to his home address. It transpired that he was on vacation at the time. The respondent didn’t have sight of the letter until the 9th August. On that date they e-mailed the complainant stating that they were now in receipt of the letter and due to annual leave, would not be in a position to deal with the issues until the week starting the 19th August, 2019. The complainant resigned the following day. When asked why he decided to resign when he did, he stated that he was walking on eggshells waiting for something to happen that would give the respondent the opportunity to dismiss him. He was also waiting for the respondent to deal with the issues raised in the letter of the 18th July. The reality was that on the date he resigned nothing had happened that could have led to a disciplinary sanction and he had the explanation for the delay in dealing with his grievance. The respondent wrote to the complainant following his resignation stating that the Appeals officer had been replaced with another individual and invited him to rescind his resignation so that they could deal with his grievances. He declined to do so. The complainant did not proffer a reasonable explanation as to why he did not appeal his ‘Final Written Warning’, particularly in light of the fact that the Appeals officer had been changed. He does have an obligation to exhaust the internal process and he failed to do so.

Having carefully considered the evidence of the parties together with the documentation and cctv evidence submitted, I find that there was no breach, significant or otherwise, of the complainant’s contract. Furthermore, I find that the complainant’s decision to resign when he did, was premature, and was unreasonable in the circumstances.

The complaint fails.

The complaint fails.