ADJ-00023024

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023024

Parties:

Complaint(s):

Date of Adjudication Hearing: 11/03/2020

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 following the referral of the complaint(s)/ dispute 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

Background

The claimant commenced employment with the respondent on the 1st July 2006 as a family support Worker. She was on continuous employment with the respondent and on the 1st September 2015 the claimant received a contract of Indefinite Duration as a development and Family support programme Worker. The claimant was paid on point 6 of the scale and payable fortnightly in arrears.

The normal working week was 15 hours excluding breaks.

CA -00029644-001

Terms of Employment (Information) Act 1994

Background

The claimant submitted that her contract was inaccurate and misleading.

The respondent stated that the contract was in accordance with the terms of Employment (Information) Act 1994.The claimant stated that her contract was changed without any consultation.

Findings

Both parties made written and verbal submissions at the hearing.

I find that having examined the contract dated the 1st September 2015 it complies with the section 3 of the terms of Employment (Information) Act 1994

Decision:

Section 41 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 find the complaint is not well founded and falls

Ca-00029644-002

Unfair Dismissal Act 1977

Summary of Claimants Position:

The claimant has been involved with the respondent since 2006 and was working as Development and Family Support Worker for the respondent. The claimant resigned her position on the 17th January 2019.The claimant stated that she had to deal with various issues during her employment with the respondent.

She had acted as a temporary coordinator on occasions despite the fact she never applied for that position.

The claimant stated that the XXX failed in their duty of care to her.

She had long established family friendly arrangements which were afforded to her as she took time off (parental leave, toil, and occurred annual leave) during the summer as all her programmes ran during the academic year. She had been on point 6 of the salary scale since 2015 with no advancement in increments.

The claimant submitted she had some difficult discussions with the respondent’s staff subcommittee (SCC) around what she felt was at times unequal treatment, since she had started employment.

The claimant stated that no one person or body took responsibility for keeping a complete staffing file of her employment.

Her work load had increased and that she was too busy in doing her job and she assumed that the staffing structures would be in place to support and supervise employees.

With such a long period of service and with frequent changes in XXX representation she was at a huge disadvantage as the Staffing Sub Committee*(SCC) only had access to whatever issues have arisen since they took up their roles.

It was stated that no one took responsibility for passing on important information relating to her employment.

The claimant stated she had seen first-hand the impact of grievances taken and how poorly the XXX structures handled these grievances.

The claimant submitted that she was undermined, her position threatened and bullied by a representative of the XXX but when she tried to deal with it with documentation they (XXX) failed in their duty of care to her as an employee.

The claimant submitted because she had raised wrong-doing within the organisation she was now being penalised. It was added the conduct of the Coordinator and the SCC in the period 8th 9th October 2018 rendered her unable to complete her day to day work.

The claimant highlighted a number of other matters, however she found that due to poor communication, she was being put in a spot to represent the XXX without knowing all relevant facts and this placed enormous stress on her.

The claimant stated that she found her role being made redundant, by the summer of 2018 there had not been a team meeting since late 2016, supervision was irregular and there was no communication between the XXX and the staff. The claimant stated she went out on sick leave on the 10th October 2018 due to work related stress.

The claimant had submitted that the XXX coordinator had changed the title of her position without any consultation or discussion while she was on sick leave. The claimant added that due to the continuous lack of support and her position being undermined she was left with no alternative but to resign her position.

The claimant gave other examples poor practices in operation.

Summary of Respondent Position

The respondents submitted that they have acted in a reasonable manner at all times. The respondent wrote to the claimant on the 7th November 2018 expressing concern when they became aware that the medical certificate contained a diagnosis that the claimant was suffering with work related stress. The respondent submitted they were not aware of any difficulties that may have caused the claimants illness and offered to assist in any way.

The claimant in resigning her position had not initiated a formal grievance under the respondent’s grievance Policy. The claimant was aware of the contents of the handbook and the procedures contained therein.

The claimant had not exhausted all internal procedures before resigning and subsequently claimed constructive dismissal.

The respondent submitted that submitted that Section 1 of the Unfair dismissal Act 1977 (as amended defines dismissal in relation to an employee as, inter alia

”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 and would have been entitled, or it was or would not have been unreasonably by the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

In light of the definition and in accordance with the principles adopted by the WRC and the Labour court, the employee must demonstrate that one;

1              employer had acted in such a manner so as to breach a fundamental term of the employment contract.

2              the employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

Findings

Hearings took place on the 31st October 2019 and on the 11th March 2020.

Both parties made written and verbal submissions at the hearing and additional submissions were made at the hearing on the 11th March 2019.

I find that both parties expressed strong views at the hearing of 31st October 2019 and the case was then adjourned for 3 months to allow for discussions to take place between the parties.

I find that the interaction was clearly between the claimant and the XXX.

I find that based on the evidence at the hearing of the 11Th March 2020 this position was misrepresented, and this support was not forthcoming especially from members on the XXX

I find the timeline submitted at the hearing which “states 5.11.19 at 12.08” that adjudication process takes precedent and that all documents have to be shared with the WRC is not a true or accurate reflection of what the parties agreed on the 31st October 2019.

I find the parties themselves would meet to try and resolve their difficulties with no reference whatsoever to the WRC except to notify WRC if the dispute had been resolved.

I find that while the claimant is making representation on behalf of volunteers

the only issue for decision and recommendation are the complaints submitted by the claimant.

I find the issues of the claimant centre around her role as a development worker and the frustration and lack of support she received from the XXX.

I find that that the changes to the claimant’s job description was done without consultation and while the claimant was on sick leave and this was clearly in breach of the claimant’s contract of employment. The lack of support, communication and management during this process was instrumental in escalating issues that concerned the claimant.

I find the respondent has more than adequate policies in place to deal with issues that arose, but the respondent’s failure to follow its own procedures and policies contributed significantly to the distress and work-related anxiety the claimant felt.

I find the XXX have a responsibility to ensure that proper and good communication existed at all levels of the organisation.

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 given the circumstances and evidence before me the complaint for unfair dismissal is upheld and I award the claimant €4000.

CA -0029644-003

Protection of Employees (Fixed-Term Work) Act, 2003

The claimant submitted that the respondent failed to inform her (fixed term employee) of opportunity for (a) permanent employment or (b) of appropriate training opportunities

The respondent submitted that the claimant was a permanent employee and she was not a Fixed Term Worker as defined by legislation.

Findings

I find based on the contract of employment of the 1st September 2015 the claimant has a contract of Indefinite Duration.

Decision:

Section 41 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 find that the claimant is not a Fixed Term Worker as defined by the legislation and the complaint falls.

Dated:   6th July 2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Key Words: