ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020692

Parties:

Complaint(s):

Date of Adjudication Hearing: 06/01/2020

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 dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint dispute

Background

The claimant commenced employment with the respondent on the 9th September 2016 as a sales assistant. Her hours were flexible, and she earned an average of €300 per week

The claimant submitted that she had to leave the employment due to the conduct of the respondent

The claimant submitted 6 different issues to support her position

A summary of the Complainants position

The claimant submitted that the main points she wished to raise were as follows

The claimant submitted that following a respondent Christmas party 2016 an incident happened after hours that were very difficult for the claimant and despite it being reported no action was taken on it by the respondent

The claimant stated that she had made a formal complaint in early April 2019 about the incident the respondent took no action.

The claimant further stated that she was a witness and she was subjected to harassment

1. The incident at the Christmas party in December 2016
2. Her complaint in April was not properly investigated
3. False allegations and the breach of Data protection
4. Bullying and Harassment
5. Failure to negotiate with the trade union
6. The respondent failure to comply with their own procedures
7. The impact on the claimant’s mental health
8. Refusal to accept her resignation
9. Failure to comply and respond to her legal representative
10. The claimant submitted that an investigation in May 2018 the respondent did not have footage of a customer talking to her and or the engaging with two respondent managers

The claimant resigns her position due the behaviour of the respondent.

Summary of the respondent’s positions

There is no dispute that the claimant resigned her position and that her last day was the 20th January 2018 giving 14 days’ notice. On foot of the resignation the respondent again offered the claimant the use of the internal procedures and informed her they could not accept her resignation

The claimant failed to submit a Statement and Act in Accordance with the “WRC procedures in the investigation and Adjudication of Employment and Equality complaints”

It was submitted that the respondent made extensive efforts to try and engage the claimant in the grievance procedure from the date of the 3rd August 2018 they were put on notice that she had an issue. The respondent submitted that the claimant failed to engage with the procedures offered or to correspond back to the respondent. The claimant solicitor responded informing them that it was not for the respondent to not accept her resignation ”You do not have an option to refuse acceptance of such resignation” in this correspondence the claimant legal representative thereafter demanded a reference .P45 and annual leave owed, as well as submitted a subject access request, and concluded by informing the respondent they are lodging a complaint with the WRC for constructive dismissal.

It is the respondent’s position that the complainant did not utilise the grievance procedure before or after a resignation when she was requested to do so.

Therefore, it is clear, regardless of the efforts to contact the respondent went to in addressing a resignation, the complainant had already made up your mind that she was leaving and taken actions to obtain alternative employment by going back some time would logically conclude. It is also clear that she had no intention of ever returning to the company or meaningfully engaging in order to be ready issues she may have had a point to a societal conclusion. Therefore, it is the position of the company that failing to lodge a grievance before resigning, this proves fatal, case should be dismissed.

In respect to reasonableness, it is the respondent’s position that there exist two interwoven factors to be considered

(a            ) did the employer act unreasonably so as to render the relationship intolerable,

and

(b)          did employee act reasonably in resigning.

The respondent submitted case law McCormack v Dunnes Stores Ud 1421/2008 where the tribunal particularly in respect of exercising internal grievance procedures,

“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 the attempt to resolve the grievance with his/her employers”

The respondent submitted they had acted so unreasonably as to make the continuation of the employment   intolerable, and it was reasonable for the employee to resign

The respondent submitted additional Tribunal case law to support the position of internal procedures.

The respondent acknowledges that the claimant did raised grievances in 2016 and 2017 both which were fully investigated. The first was not appealed. The second was appealed and a decision issued with no referral to the third party in line with the Union agreement.

The responded submitted that the claimant resigned when she had obtained alternative employment such that she would not work out the notice as her commencement date was immediate.

Findings

Both parties made written and verbal submissions at the hearing.

I find that in 2016 and the 2017 the claimant did raise grievances   both were fully investigated. I find that a decision was issued in relation to the 2017 case.

I find that claimant did not appeal the findings to an outside third party in line with union agreement.

I find the incident at the Christmas party and the subsequent grievance which was investigated and upheld.

I find that this did case caused embarrassment to the claimant and I find that the respondent could have offered some form of moral support in that regard to the claimant.

I find that the claimant did not follow the agreed internal procedures   I find in the case of Conway versus Ulster bank UD474 – 1981, which states

“The tribunal considers that the appellant did not act reasonably in resigning without first substantially utilising the grievance procedure to attempt to remedy complaints. An elaborate grievance procedure existed but the appellant did not use it is not for the tribunal to say whether this procedure would have produced a decision more favourable door, but it is possible.”

I find that the claimant was seeking work prior to leave her employment with the respondent.

I find that the claimant was provided with opportunity by the respondent to have her grievances dealt with under the internal procedures even after she submitted her resignation to the respondent, but she failed to respond to the offer.

On that basis

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 on that basis the claim for constructive dismissal fails.

Dated:   14th May 2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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