ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024886
Parties:
| Complainant | Respondent |
Anonymised Parties | General Manager | Non-Governmental Organisation and Registered Charity |
Complaint:
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-00031725-001 | 16/10/2019 |
Date of Adjudication Hearing: 21/01/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing. The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997). It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee. The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the of Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract. Secondly, the employee may allege that she satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 16th of October 2019) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter. In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would have regard for the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v- Ulster Bank Limited Wherein the Tribunal stated:
“The Tribunal considers that the Appelant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appelant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
The Complainant’s case is set out in her workplace relations complaint form (dated the 16th of October 2019) wherein she says that she had to leave her job due to the conduct of her Employer. The Complainant has brought another complaint under the Organisation of working Time Act and this is contained in ADJ File 23479. It is noted that the parties were advised of the proposed hearing date by letter on the 20th of December 2019. Neither party has representation and neither party provided me with a submission in advance of the hearing. An application was brought by the Respondent on the 20th of January to postpone this case arising out of the fact that a witness JMD was sick. In line with practise the WRC sought relevant supporting documentation to allow it make a fully informed decision on whether or not a postponement should be granted. This would normally be a certified medical certificate. None was immediately forthcoming, and the Respondent was advised on the morning of the hearing that the hearing would proceed as no postponement had been granted. As Adjudicator herein I confirm that having waited an appropriate length after the appointed time I proceeded to hear the Complainant’s case in the absence of the Respondent who did not present themselves despite the fact that no postponement had been granted. I can further confirm that in the course of the Complainant’s evidence it was not obvious to me why the Respondent could not proceed in the absence of the sick witness JMD who did not appear to have a significant role. If the role is greater than I perceived it be, I would have entertained any application to have additional evidence heard on a later date when the said witness had recovered. After having heard the uncontradicted evidence of the Complainant I allowed the Complainant go. It was only after the hearing that I had sight of a letter from a school principle stating that the witness JMD had been unwell yesterday. With the greatest of respect to the author of the letter I do not believe she has a medical qualification, nor does it state that she had even had sight of the witness the previous date. This was not a medical report . I therefore am proceeding with my decision. |
Summary of Complainant’s Case:
The Complainant handed her resignation into the Board of Management as she was getting no support from them. The Complainant said she had no alternative in all the circumstances. |
Summary of Respondent’s Case:
The Respondent did not attend. |
Findings and Conclusions:
The Complainant provided me with a number of documents in the course of her evidence. The Complainant commenced her employment as a General manager with the Respondent not for profit organisation that supports immigrant communities to settle and become productive and collaborative members of Irish Society. She commenced in February of 2018. The Complainant was absolutely passionate and committed to the work she was doing. She accepts that it was a deep and sudden immersion and that she needed as much support as she could get within the staff structure in place. The Complainant describes a situation of fire-fighting in the initial stages of her employment as she grappled with understanding the schedule and events and practises. However, the Complainant did not think she was being overwhelmed and felt she was promoting the Respondent’s work and putting together a good case for ongoing and considerable funding. The Complainant described a difficult relationship with the Financial Officer who had been in situe for quite some time and operated to be as unhelpful as it was possible for the financial officer to be. By February 2019 the situation with this individual was such that the Complainant sought intervention from the board and to this end set out a comprehensive complaint against the Finance and Office Co-Ordinator. She made it quite clear that her position going forward would be untenable if the issues remained unresolved. These issues were raised in an email dated April 4th 2019. They were replied to by the Chairman of the Board on the 4th of May 2019 enclosing a letter from the Finance Officer wherein the FO rebutted and defended each of the allegations set out in the Complainant’s Grievance. And that appears to have been the extent of the Investigation process. In fact, the outcome seems to have been decision by the Board that the Complainant could no longer sit at Board meetings. At the same time that she was told this, the Complainant was presented with her Contract of Employment for re-newel which she signed without realising or being told that it was not for the expected twelve-month period but was for a two month period. No explanation was given. It was clear to the Complainant that the difficulties she was experiencing with the Financial Officer had not been comprehensively investigated and were not going to be. It was also clear to the Complainant that the said Financial Officer did not see herself as being in any way answerable or even obliged to collaborate with the Complainant (who was after all the General Manager). The Complainant felt undermined and undervalued. The Complainant believed she did not have the support of the Board and there is no evidence to suggest she had any ally or was incorrect in her summation. The final blow came when the Complainant submitted her resignation in June 2019 at which point she was advised that there was no Notice period to work out or be paid for as her Contract of Employment was due to end anyway. By way of adding insult the injury the Complainant was accused of looking for “free money” in this regard. In the circumstances the Complainant was therefore not allowed to work her way out of this job in an orderly and dignified manner. Nobody supported the Complainant, and nobody had a good word to say to her. The Complainant dealt with a number of Board members during the employment and none of these individuals came to defend the actions of the Board. As previously stated, I do not think that the sick Board member MD had a particularly big role to play. I am satisfied that the Complainant could have no confidence in the internal processes that this workplace may have in place. The nature of the purported investigation conducted was woefully inadequate and could give no confidence in the approach taken. I am satisfied that the Complainant tendered her resignation by reason of the conduct of the Employer and that she was therefore Unfairly Dismissed. In her evidence the Complainant disclosed that she has looked for employment but has also considered re-training. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977CA-00031725-001 – The Complainant was unfairly dismissed and I award the sum of €25,000.00 compensation for six months loss of earnings |
Dated: March 20th 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath