Complainant

Respondent

Parties

Stephen Bourke

Complex Productions Ltd.

Representatives

Des Courtney, SIPTU

 Not represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035839-001

27/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035839-002

27/04/2020

The respondent is a community arts venue in Dublin city, known as The Complex, and is a charity limited by guarantee.  The complainant, Mr Bourke, commenced working as a production manager on December 3rd 2018.  He was employed on a fixed-term contract for three years on an annual salary of €30,000.  He was contracted to work 40 hours a week.  He was dismissed on December 20th 2019; however, following an appeal, the sanction of dismissal was reduced to a final written warning.  Although his appeal was upheld, Mr Bourke resigned because he disagreed with the terms of his reinstatement.       

Mr Bourke submitted two complaints under the Unfair Dismissals Act 1977.  In the first instance, he claims that he was dismissed.  Alternatively, he claims that he had to leave his job because of the conduct of his employer, and on this basis, he claims that he was constructively dismissed.  The complainant asked that I find in his favour under one or other of these headings.

Chronology Leading to the Termination of the Complainant’s Employment

On July 31st 2019, eight months into his fixed-term contract and, with the support of the artistic director, the complainant applied to do a Master’s in Fine Arts Degree in Stage Design.  The course was run by the Lír National Academy of Fine Arts at Trinity College.  The commitment is part-time for two days a week on Thursdays and Fridays from 9.00am until 5.00pm.  In Mr Courtney’s submission on behalf of the complainant, he said that both parties had a mutual interest in Mr Bourke doing the course, as it would enhance his skill-set and provide additional technical capabilities in lighting design to The Complex.    

On September 2nd 2019, the artistic director wrote to the complainant setting out the terms of agreement for his participation on the course.  She confirmed that the board of directors agreed to cover 50% of the fees of €5,800 and that he would attend the course with no alteration to his full-time contract.  Soon after the commencement of the course, the absence of the complainant from the venue on Thursdays and Fridays began to cause problems.

Following a review meeting with the artistic director and another manager on October 4th 2019, the complainant proposed that he would work 36 hours over three days from Monday to Wednesday and that he would work the remaining four hours of his contract by agreement when he was required.  It appears that this arrangement wasn’t entirely successful and a meeting took place on November 11th 2019 to address problems with the complainant’s time and project management skills.  The complainant indicated that he was finding it difficult to juggle his full-time job, the commitment of doing the course and seeing his family.  The minutes of the meeting show that the artistic director described the current situation as not working, where the complainant “disconnected on a Wednesday evening and immersed himself in the course until the following Monday morning.”  She said that she and one of her colleagues had been doing the complainant’s job during his absences.  He was asked to consider moving to a three day week, but he said that he would like to try to get on top of his responsibilities. 

Another meeting took place the next day, November 12th.  It is apparent from the notes of this meeting that the artistic director was not confident that the complainant could carry on with his job as production manager while he was undertaking the Master’s course.  She decided that he should not continue to work full-time and do the course for two days a week.  She proposed that his fixed-term, full-time contract as production manager would end on November 30th 2019 and that he would be offered a three-day week contract as a technical manager with effect from December 1st.  This contract was for 12 months, with the possibility of renewal following a performance review.  This was confirmed in an email on November 14th 2019.  The complainant replied and said that he did not agree to a change in his contract or a reduction in his salary.  He asked for clarity and further discussion.

The complainant lives in Roscommon and he was permitted sleep in a store room in the venue on some evenings.  On December 5th, he was informed that, for health and safety reasons, he was no longer permitted to stay in the venue overnight.  In an email with this instruction, he was also instructed not to remove his company laptop from the venue and not to use it for his coursework.

A disciplinary meeting took place on December 17th 2019, following which, the complainant was dismissed because of his performance failings and his failure to respond to management instructions.  He appealed against this sanction to the chairman of the board of directors, Mr Brian Montague.  On January 22nd 2020, Mr Montague wrote to the complainant to inform him that the dismissal was reduced to a final written warning.  He was instructed to discontinue his participation on the Master’s programme and to resume working full-time for The Complex.  He did not return to his job. 

In the first instance, the complainant claims that he was dismissed and the burden of proof is therefore on the respondent to show that, if he was dismissed, his dismissal was not unfair. 

In a written statement in advance of the hearing of this complaint, the artistic director said that the company refutes Mr Bourke’s claim that he was dismissed.  She said that he was subject to a disciplinary hearing, the result of which was that he was notified on December 20th 2019, that he would be dismissed with notice of one week.  With the support of his union representative, he successfully appealed against that decision and it was overturned on January 22nd 2020, when the chairman of the board of directors issued the complainant with a final written warning and instructed him not to continue with the Master’s course.  The complainant decided not to return to work, and is claiming that he was constructively dismissed.

A copy of the minutes of the disciplinary hearing of December 17th 2019 was submitted in evidence.  It shows that the complainant was considered to be a valued member of staff, and that his technical skills were not in question.  The issue for consideration was his failure to meet the required standards, targets and responsibilities of his role and his failure to respond to reasonable management instructions.  The notes of the meeting show that he failed to respond constructively to the questions asked at the meeting.  At the end, his union representative submitted that the problems were “resolvable.”  He accepted that the company had legitimate concerns and that the performance issues raised had caused stress and anxiety to the management and to the complainant.  He said that he understood that the company required certain standards to be met and he offered to assist to “try to get things back on track.”

An appeal meeting was held on January 15th 2020, and the complainant was represented by a different union representative.  The notes show that the union representative said that the complainant had been asked to undertake a course and that he had naively agreed to do so and to do his full-time job at the same time.  He was asked to up-skill for the benefit of The Complex while not being paid, and he was expected to pay half of the fees.  The complainant said that he thought this this “would be hard, but do-able.”  When it didn’t work out he was offered a one year contract for three days a week.  When he didn’t accept this proposal, the union representative claimed that the disciplinary procedure was invoked.

At the meeting, the complainant agreed with Mr Montague when he suggested that the issues with his performance commenced after he started on the course.  He said that he saw the offer of support to do the course as validation by the board of directors of his skills and his value to the company.   He said that he doubts that he would have been offered the opportunity to do the course if there had been issues with his performance beforehand.

The minutes of the meeting note that the union representative suggested that the complainant may have to leave the course, return to his job and address the performance issues.  He said that he was not advocating this, but that it could lead to a resolution.  The complainant acknowledged that he was not as engaged as he had been but he claimed that the artistic director might not understand the reality of his job.

On January 22nd, the chairman of the board of directors confirmed that the decision to dismiss the complainant was overturned, with two conditions:

1.              That, over the following six months, he demonstrates the required improvement to the management and planning aspects of his job.  This included the setting of clear performance standards and objectives and engaging with the management on these. 

2.              That he discontinue the course at the Lír Academy and commit his time fully to his work at The Complex.

Evidence of the Artistic Director

In response to questions from me, the artistic director described the structure of the company which has a board of nine directors, all of whom are volunteers.  She is the person with overall responsibility for the day to day running of the venue.  Reporting to her are a general manager, production manager, gallery manager and a part-time studio manager.  The organisation employs just her and these four other staff.  Before he was employed as the production manager in 2018, the complainant had been working on a contract basis since 2015.  Between 2015 and 2018, he had been given office space for his own work in return for carrying out maintenance work.  In 2018, the company took a three-year lease on the venue in Dublin city centre, and the offer of a three-year, fixed-term contract to the complainant in the role of a production manager was aligned to this tenancy.

I asked the artistic director why she suggested to the complainant that he could do the Master’s degree in the Lír Academy.  She said that she felt that he had been demotivated during the summer and she thought that it would be a help.  She said that he had an interest in lighting and set design and that she knew someone who had done the course and found it beneficial.  She said that she accepted the significance of the time commitment involved.  She said that she had been in the same position, having a full-time job and a family and doing a course, but that it can be done by working or studying in the evenings and at weekends.  She said that she didn’t coerce the complainant to take on the course and that she discussed the time commitment with him beforehand.

In her evidence, the artistic director said that the complainant’s problems with time management and completion of work existed before he went on the course.  This is the reason she thought that he might be demotivated.  She said that things didn’t get done and it was difficult to account for what he was doing with his time.

When I asked her why, in December 2019, she offered the complainant a one-year contract, the artistic director said that she had asked the complainant for some proposals for a resolution, but that nothing was forthcoming.  She said that they had an informal meeting to discuss the problems on November 11th, followed by a formal meeting that afternoon, and another the next day.  On November 12th, she said that she offered a one-year contract.  She said that this wasn’t an attempt to reduce the complainant’s employment, but to give him flexibility.

In response to my question about why she decided to dismiss the complainant, the artistic director said that the complainant failed to engage with her and other managers regarding what needed to be done.  She said that things went wrong at events and work wasn’t being done.  She said that, at the disciplinary meeting on December 17th, the union representative put it well when he said that Stephen loved his job and wanted to stay.  But, she said that he didn’t seem to understand that management is not just about filling time, and he needed to be pro-active and get work done.  The performance issues didn’t start when the complainant joined the course in the Lír.  She said that “the first casualty” of his failure to carry out his job was in March or April 2019, when a set wasn’t delivered on time for the performance of a show.  The agreement of the board of directors that the complainant would do the course was an effort to help his motivation.  She said that he seemed to “run out of steam” after he started on the course and she was not confident that the problems could be resolved.  She said that he could have deferred the course for a year or two, but he wanted to continue with it.

Evidence of the Chairman

In his evidence, the chairman said that it was a big decision for The Complex to commit to part-funding the course for the complainant.  He said that their revenue is less than €100,000 a year and that they generally make a loss.  There are three full-time staff members, the artistic director, the production manager and the general manager.  He said that it was a significant decision for the board to employ a production manager on a full-time basis; however, the complainant had worked with them on a contract basis and they had found him to be hard-working and committed.  By inviting the complainant to take on the Master’s programme, the artistic director was attempting to secure his employment and invest in his future.  He said that the board never spent that amount of money on any other employee.  He said that the offer of the Lír course was a major investment for the company, which is a charity, run by volunteers.  He said that it was a way of rewarding the complainant for his good work and effort.

The chairman said that the purpose of the request to the complainant to hold weekly operations meetings was to increase the visibility of his work.  He said that he was involved in other work at the same time as he was employed by The Complex.  He said that the nature of work in the artistic scene is based on fixed-term contracts and that the complainant had worked previously for The Complex in a contract position. 

As one of five employees in the company, the chairman said that they relied on the complainant’s technical capability to be flawless.  The complainant was technically very competent, but he said that he seemed to be losing interest.  He said that the problems were related to his attitude, his failure to engage with his manager, he was recalcitrant, would not respond to emails and he produced no plans.  In the end, he said that as a result from his withdrawal from management, they had to hire other technical staff for a particular event, because they felt that they couldn’t rely on him to do his job.

Regarding the complainant’s appeal of the decision to dismiss him, the chairman said that “the process worked.”  He said that he knew the complainant did good work and he tried to engage with him and his union representative to resolve the dismissal.  He said that he didn’t expect him to “fall on his sword.”  He said that he also knew the artistic director and he wanted to “find a way to fix things.”  He overturned the decision to dismiss the complainant and he imposed two conditions.  The first of these was that the complainant demonstrate an improvement in the management and planning aspects of his job and the second was that he discontinues the course in the Lír Academy. 

The Proposed Dismissal was Unfair

On behalf of the complainant, Mr Courtney submitted that the dismissal of the complainant on December 20th was disproportionate to the alleged offence and that it was carried out following a fundamentally flawed investigation.

From the outset, Mr Courtney said that the artistic director knew the extent of the commitment that the complainant would be required to devote to the Lír course.  He said that it was “an impossible expectation” for him to take on the two day course in addition to his full-time job.  Mr Courtney said that it was “a consequence of this disastrous decision that led directly to Mr Bourke’s dismissal.”  It was discovered too late that his participation on the course inevitably led to consequences for the venue.  While he offered to work for 36 hours from Monday to Wednesday, Mr Courtney said that it soon became obvious that this wasn’t a permanent solution.

Fair Procedure

Mr Courtney referred to the allegations against the complainant of “failing to meet the required standards and targets of your role or to respond to reasonable management instruction.”  He said that these could not be considered to be acts of gross misconduct.  Despite the provisions of the company’s disciplinary policy which states that transgressions will be subject to progressive sanctions, the complainant was dismissed on December 20th 2019.

Referring to the decision of the Labour Court in the case of Sloneczko Limited, trading as Breadski Brothers and Agnieszka Kopacz, UDD 1933, Mr Courtney said that the Labour Court has determined that the fundamental requirements of fair procedures are demonstrated by certain actions of the employer:

1.              The requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

2.              The requirement that an employer who has published a disciplinary procedure should follow the procedures scrupulously when conducting a disciplinary process; and,

3.              In the event that an allegation is upheld, the sanction must be proportionate.

Mr Courtney also referred to the Code of Practice on Grievance and Disciplinary Procedures published in Statutory Instrument 146 of 2000 which provides that an employee has a right to a fair an impartial investigation, taking account of representations made by them or on their behalf.  Mr Courtney said that the artistic director presided over an investigation into allegations of under-performance identified by her.  When she decided that these allegations were “founded,” she dismissed the complainant.  Mr Courtney said that she pre-judged the complainant’s behaviour and that this was far from “a fair and impartial determination” of the issues concerned.

The Dismissal was Disproportionate to the Alleged Offence

Mr Courtney referred to the decision of the High Court in Frizelle v New Ross Credit Union Limited [1997] IEHC 137.  Here, Mr Justice Flood established that fair procedures require that five specific principles must be adhered to when considering the dismissal of an employee.  The fifth and final principle requires that the decision as to what sanction should follow, should be a decision proportionate to the gravity of the complaint and the effect of the dismissal on the employee.

As the complainant had a clean disciplinary record, Mr Courtney argued that the management had a duty to consider a sanction short of dismissal.

Was the Complainant Dismissed?

Mr Courtney asked that I find that the complainant was dismissed for performance-related reasons, which, he argued, should not be the subject of a dismissal in the first instance.

It is the union’s case that the complainant’s participation on the Lír course was initiated by the artistic director who thought that “it would be do-able” from our end.”  She then identified, too late in the day, the obvious gaps in his schedule, following which she accepted his proposal to condense 36 hours into three days.  When this didn’t work out, the artistic director made certain allegations about the complainant’s performance, following which he was disciplined and then dismissed.  

Alternatively, Mr Courtney suggested that the complainant had no alternative but to terminate his employment.  In considering this position, Mr Courtney noted that section 6(7) of the Unfair Dismissals Act provides that regard may be had to the “reasonableness or otherwise of the conduct of the employer” in relation to the dismissal of the complainant. 

While the outcome of the appeal process seems to indicate that the dismissal was overturned, Mr Courtney argues that this was not the case.  Conditions were imposed on the lifting of the sanction of dismissal.  If he had accepted the outcome of the appeal, he would have had to accept that the process was fair and he would have denied himself the opportunity to further appeal before the WRC or the Labour Court.  If the complainant had not accepted the conditions attached to his appeal, the penalty of dismissal would have been re-imposed.

In his submission on behalf of the complainant, Mr Courtney referred to the two tests that must be satisfied by an employee who claims that they have been constructively dismissed; the “contract test” and the “test of reasonableness.”  The final aspect of the burden of proof in constructive dismissal requires an employee to demonstrate that they used their employer’s workplace procedures to have their grievance resolved. 

Evidence of the Complainant

The complainant said that the offer of a job for a three-year term was very attractive for someone in his line of business.   He said that he knew that there was a long-term plan for The Complex, including the possible regeneration of the building.

When asked about taking on the Master’s in Fine Arts course, the complainant explained that the focus of the first year of the course was on lighting and set design and the second year was on stage management.  He said that the artistic director suggested that he take on the course.  Its purpose was so that The Complex would have an in-house lighting and set designer.  When asked how he proposed to do 40 hours’ work in addition to the course on Thursdays and Fridays, the complainant said, “we would figure it out” and that it was in everybody’s interest to make it work.   He said that his view was that the show must go on and that they would find a way to get the work done. 

With regard to work outside his role in The Complex, the complainant said that he might have done a four hour stint on one day, but that he couldn’t say that he did other work.

Regarding the appeal of his dismissal and the opportunity for him to remain in his job, the complainant said that he believed that the conditions attached to his reinstatement were too onerous.  He said that the conditions meant that he had to assume responsibility for his actions, and that all the problems were his fault.  He said that the condition to give up the course and to pay for the employer’s half of the fees was excessive.  He said that it was agreed that the costs would be shared, and that, if he dropped out, he would be liable for the full fees.

I asked the complainant why he didn’t give up the course.  He referred again to the fees and he said it should have been possible to find a solution.  He said that a portion of the time that he spent on the course should have been considered as working time.  He said that he thought that there would have been more flexibility regarding his time.  He said that he tried to do 36 hours from Monday to Wednesday, but he was expected to do 40 hours a week.  He said that the only time that other technical staff had to be brought in was when he was on the course. 

When he was asked why he didn’t answer emails from the artistic director, the complainant said that he didn’t reply because of the commitments of the course.  Regarding the meetings in November 2019 at which he was asked to propose some options to resolve the problems being experienced due to his absence on the course, he said that he couldn’t come back with options because he was surprised that he was expected to respond.

When he was asked why he didn’t accept the terms of the appeal of his dismissal, he said that if he had come back to work, he would have had to work with people that who had dismissed  him after a short and unfair process, and that would have been difficult.

In March 2020, the Master’s course was closed due to the Covid 19 pandemic and the complainant said that he accepted a deferment.  He is hoping to complete the course when it resumes.  He was not required to reimburse The Complex for their half of the fees for the first year.

Was the Complainant Dismissed?

It is evident that the complainant was dismissed on December 20th 2019, following a disciplinary meeting on December 17th 2020  It is also evident that, following his appeal, his dismissal was overturned and he was issued with a final written warning.  He was invited to return to work on January 25th 2021 with no loss of pay.  In his letter confirming that the complainant’s appeal was successful, the chairman sets out the conditions for his return to work in clear terms:

“…I am prepared to revise the disciplinary decision against you from dismissal to final written warning with the following conditions:

1.      That you demonstrate the required improvement to the management and planning aspects of your job to meet the required standard over the next 6 months.  That will include the setting of clear performance standards and objectives and engaging fully with Management on these.  Should you not meet the required standard you will be liable for further disciplinary action which, given that you have a final written warning, may include dismissal.

2.       That you immediately discontinue the course in set and lighting design at the Lír that you are taking and commit your time fully to your duties at The Complex.”

The right of appeal is an inherent component of a fair disciplinary procedure, and, in this instance, it had the desired outcome and the complainant was reinstated in his job.  It follows therefore, that he was not dismissed.  I find that the complainant left his job when he decided that the conditions of devoting himself to improving his performance and discontinuing the Master’s programme were too onerous.

The Legal Framework

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“[D]ismissal, in relation to an employee means -

“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 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 without giving prior notice of the termination to the employer…”

As a complaint of constructive dismissal, the burden of proof rests with the complainant to show that his decision to leave his job was reasonable in the circumstances that prevailed at the time.  The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, was it reasonable for him to resign and to claim that, because of how he was treated by his employer, no other course of action was open to him?

Context of the Complainant’s Decision to Resign

Having worked on a contract basis at The Complex for three years, the complainant was highly regarded by the artistic director and the board of directors.  Based on his reputation as a skilled technician and a good worker, in December 2018, he was offered a fixed-term contract.  By March 2019 however, the artistic director thought that he had become demotivated.  My experience of employees moving from being contract workers to direct employees is that the transition can sometimes be difficult.  As a direct employee, the individual’s time during the working day must be dedicated to a single workplace, and the freedom associated with managing one’s own time is gone.  There is a responsibility to plan ahead, which involves considerable administration, rather than the immediacy of turning up and doing a job.  From my own experience of having been self-employed, I know that it can be difficult to take direction and to accept that, for 40 hours a week you have to commit to one organisation rather than be open for opportunities that might come along.  This was the context in March 2019 in which the complainant and the artistic director had a discussion about the possibility of him doing the course in stage and lighting design at the Lír Academy.

The complainant started on the course in September 2019, but by October, the artistic director found that his attendance meant that his reduced availability as production manager was having an effect on the operation of the venue.  She was taking up the slack with the help of the general manager.  They had to engage contract technical staff for some shows.  The complainant offered to be available for 36 hours between Monday and Wednesday, but this didn’t achieve the required improvements.

As someone working in the arts, who had previously been a contractor, I find it difficult to understand why the complainant didn’t offer to be available in the evenings or at weekends.  He confined his availability to three days of the week from Monday to Wednesday.  As the busiest part of the week in the arts sector is the evenings and weekends, it seems to me that the easiest way of resolving the time issue would have been for him to make himself available on Thursday and Friday evenings and on Saturdays, but it seems that he didn’t consider this option.

While it wasn’t a condition of his employment, the complainant had been permitted to stay overnight in the venue, but this permission was withdrawn in early December 2019.  As his home is in Roscommon, the loss of this perk caused convenience and more time pressure.  I understand that the venue is not suitable for residential use and that this facility had to end; however, it is apparent to me that the removal of this benefit was a consideration in the complainant’s decision not to return to work when his appeal was upheld.

The Burden of Proof in Constructive Dismissal Cases

Mr Courtney referred to the requirement of an employee who claims that they have been constructively dismissed to satisfy two tests, known as the “contract test” and the “test of reasonableness.”  As a third component of the burden of proof, an employee who argues that their resignation was because of the conduct of their employer, must demonstrate that they made every effort, by utilising the internal procedures, to have their grievances addressed.

The contract test requires an employee to demonstrate that his or her contract has been repudiated, meaning in effect that the employer has abandoned the provisions of the contract.  Mr Courtney referred to the case at the Court of Appeal in the UK, Western Excavating (ECC) Limited v Sharp [1978] IRLR 332, in which Lord Denning described the operation of the contract test:

“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 discharged from any further performance.”

Mr Courtney argued that the complainant’s failure to accept a reduction in his contract from three years to one year, resulted in his dismissal.  I do not accept this argument.  In November 2019, the complainant refused to accept a different job to that which he was offered in December 2018; however, it was his continued failure to deliver on the standards expected of him that resulted in his dismissal.  In any event, I have found that the dismissal of the complainant was overturned by the chairman and the issue for consideration now is whether the conditions imposed on his return were a breach of his contract.

There is no provision in the complainant’s contract of employment related to his participation on a training course.  It follows therefore, that the decision of the chairman that he should discontinue the course, while disappointing, does not have the effect of repudiating his contract.

The second condition, that over a period of six months, the complainant was to establish clear performance standards and engage with his manager on the achievement of these standards is a condition that is expected of employees generally, and cannot be said to be considered to be an imposition or a breach of contract.

The final issue raised by the complainant which he said made it difficult for him to return to work in January 2020, was the fact that he had to continue to work with and report to the artistic director, whose decision to dismiss him had been overturned.  At the hearing of this complaint, I was impressed by the positive regard expressed by the artistic director towards the complainant.  She accepted the decision of the chairman to overturn her decision to dismiss him, and she appeared to be willing to move on, knowing that, as he wouldn’t be doing the Lír course, he could devote himself fully to the venue. 

The second test requires the employee to demonstrate that his employer’s conduct was so unreasonable that he had no alternative but to resign.  This was considered in the case of McCormack v Dunnes Stores, UD 1421/2008.  Here, the Employment Appeals Tribunal concluded that:

“The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.” 

Referring to the dismissal of the complainant in December 2019 and his appeal in January 2020, Mr Courtney submitted that “the employer conducted those affairs so unreasonably as to justify Mr Bourke leaving his employment.”  I do not accept this contention.  The dismissal of the complainant was overturned when his appeal was upheld.  As such, the appeal was in the complainant’s favour and cannot therefore be considered to be unreasonable treatment of him.

It is my experience that, in the vast majority of cases, an employee who is dismissed generally fails in their effort to persuade their employer to reverse that decision through the appeal process.  In this case however, the chairman decided to give the complainant an opportunity to demonstrate that he could do the job without the encumbrance of his participation on the Master’s course.  The course was consuming 16 hours, or perhaps more of his working week and he seemed to be closed to the possibility of working any other hours outside of Monday to Wednesday.   As this option had already failed, it seems to me that the employer’s decision to instruct the complainant to discontinue the course was not unreasonable.  I note also that this solution was tentatively proposed by the complainant’s union representative at the appeal hearing.

I have considered the complainant’s submission and the evidence of both sides concerning the elements that could give rise to a breach of contract or unreasonable treatment on the part of this employer.  I am satisfied that there was “no significant breach going to the root of the contract” to which the complainant can refer to show that he meets the burden of proof in the contract test.  I find in fact that the complainant’s contract was adhered to in all respects.

Considering the reasonableness test and the complainant’s contention that the treatment of him by his employer was so unreasonable that he couldn’t put up with it any longer, I find also that he fails to meet this arm of the burden of proof.  It was not unreasonable for the employer to ask him to meet certain standards of work, and it was reasonable to find that he would only be capable of meeting that standard if he had five days in which to do his job.

The final aspect of the burden of proof in constructive dismissal requires an employee to demonstrate that they used their employer’s workplace procedures to have their grievance resolved.  As he had effectively reached the end of the disciplinary process, I don’t think there was anything to be gained by the complainant invoking the grievance process at that point and nothing turns on the fact that he did not invoke a grievance regarding the conditions imposed in the chairman’s letter of January 22nd 2020.

Conclusion

I accept that it was disappointing for the complainant not to be permitted to continue with the Master’s course in the Lír Academy.  This disappointment was shared by his employer, who paid half of his fees with the expectation that his qualifications would be an asset to them in the future.  In the end, both sides lost.  Looked at from another perspective, perhaps the decision to resign was a positive move for the complainant, as it gave him the opportunity to devote himself full-time to the course. 

I find that there were valid reasons for the complainant to resign, but that these reasons were related to his own particular circumstances concerning his academic plans, his accommodation issues and the difficulties of the transition from being a contractor to a full-time employee.  I find that, with some flexibility on his part, he could have continued to participate on the course, but that he expected all the compromise to come from his employer.  In conclusion, I find that the complainant has not made out the standard of the burden of proof required to show that the conduct of his employer was such that he had no alternative, but to leave his job.

CA-00035839-001

I have concluded that the complainant was not dismissed.  I decide therefore, that this complaint under the Unfair Dismissals Act is not well founded.

CA-00035839-002

I have concluded that the complainant has not made out the burden of proof required to establish that he was constructively dismissed.  I decide therefore, that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal