Complainant

Respondent

Anonymised Parties

Security Officer

Supermarket Owner

Representatives

Jim Downing                                              Lawlor O'Reilly & Co

Marian McCullagh

HR Representative                                     

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-00033254-001

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033254-002

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033254-003

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033254-004

18/12/2019

This case was heard over the course of six days. The Complainant is making the case that his Employer’s conduct was such that he had no alternative other than to tender his resignation. A number of other Statutes protecting Employment rights (and set out above) have also been contravened he says.

The Complainant was fully represented at the hearing. The Complainant provided me with a comprehensive written submission together with supporting documents. I heard oral evidence from the Complainant and at least one other witness on his behalf. The Complainant’s evidence was tested in cross examination. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case.

The Complainant is making the case that his Employer’s conduct was such that he had no alternative other than to tender his resignation. A number of other Statutes protecting Employment rights (and set out above) have also been contravened he says.

The Respondent had representation at this hearing. The Respondent provided me with two written submissions dated March 2020 and April 2021. I have additionally heard from a number of witnesses for the Respondent including the Respondent himself. The Respondent was cross examined.

The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case.

I have carefully considered all of the evidence I have heard in the course of five days of oral hearings I also examined all the documents presented and the submissions (both oral and written) made by both of the parties involved. A timeline was prepared by the Respondent representative which has been a useful reference document.

The Complainant started his employment as a security officer in the Respondent’s supermarket at the end of October 2017. The Respondent is an individual coming from a retail management background and who has owned and operated this Supermarket for the last 32 years. The Complainant came from a security background and was engaged  to be the head security Officer on the premises. The Complainant wanted to work more regular, family-friendly hours and get away from nightclubs and pubs. Both the Complainant and the Respondent were trained up together by the security officer in situ and whose job the Complainant was to take over. They were the only two in the Supermarket with the licence to stop people. The Complainant was answerable directly to the Respondent. The Respondent was the relief security officer when the complainant was not at work. It is a striking element of the inter party history here, that the Complainant and the Respondent initially had a very close and a very good working relationship. It was the demise of this relationship that brought about the termination of the employment.

I believe that the Respondent came to rely on the availability of the Complainant, who demonstrated flexibility in how his hours would be used up in any given week. The Complainant gave evidence that if he worked up extra hours, he would get a day off rather than get paid more. The Complainant was obliging when it came to helping with the deliveries, packing shelves and generally helping out.

There has been some initial confusion regarding hours and rates of pay but the parties agreed a Contract of Employment which was personal to the Complainant regarding hours to be worked and the rate of remuneration. These terms were fixed.

As I understand it, the employer herein is a big enterprise. There are up to 55 part time staff and 17 full time. The turnover is in the region of €9,000.000.00. The Respondent himself is extremely hard working and very proud of his business - working from 5am to 7pm every day. NB (one of the Managers) observed that RM is the kind of Manager that gets stuck in and could be seen to be in there mopping the floors as readily as performing any other function.  I would observe that the level of HR support on site is extremely light and a reliance on the support offered by  the Wholesaler franchise holder, cannot possibly provide sufficient oversight of such a large workforce. I believe the Respondent (RM) is potentially spreading himself too thin in this regard. His 32 years in Management does not give him the required expertise or qualifications to oversee the Human Resource needs of 60 to 70 members of staff.

Sometime after settling into the workplace, there seems to be little doubt that the Complainant was concerned about his health. This started in and around mid-2018.  The Complainant described a general weakness, lack of strength and bad sleeping pattern. The Complainant attended for medical exploration and was referred to Hospital. The Complainant was advised by Beaumont Hospital that he could meet with a consultant within the next three years if he remained on the public waiting list. No particular urgency appears to have stemmed from this referral, and it is not clear that the Complainant made enquiries as to the cost if he went to see the consultant privately in this jurisdiction.

His GP appears to have run blood tests showing that his liver wasn’t functioning correctly. The Complainant opted to attend a medical expert in Lithuania as his wife was from there. The Respondent gave evidence that he went out of his way to facilitate this visit in December of 2018. The results of this exploration was a confirmation that the Complainant’s liver was enlarged. The Complainant was prescribed medication and advised that he might require further treatment after he had had further tests performed.

As the Complainant had recently become a father, he was concerned that his health was in decline such that he might not be able to continue to support his family. He believed his options were few, as both Ireland and Lithuania were expensive options for treatment. The Complainant considered his best option was to return to his native Brazil for tests and treatment. Understandably, he wanted to be able to discuss his health and likely outcome in his own language. I accept that he lacked certainty and control when he relied on his Lithuanian wife to translate for him in Lithuania or that he could fully understand when in Ireland where English is his second language.

I do not doubt that the Complainant found his Employer RM and other staff to have been sympathetic and understanding and indeed concerned as to the Complainants health. Where necessary, it seems he had disclosed medical updates to allow for medical appointments and the trip to Lithuania.

The Annual Leave policy in the Employee handbook is absolutely clear:-

‘Dates on which annual leave are granted are ultimately at the discretion of the store, in consultation with you, and will depend on business needs.’

‘All applications for annual leave must be approved at least four weeks in advance by your Manager. You should not arrange payment for flights or accommodation without this approval.’

In his direct evidence the Complainant accepted that he knew that any request for Annual Leave should be submitted and sanctioned before it can be assumed that it can be taken. He accepted in cross examination that he had never taken leave at such short notice before and always submitted the application in the appropriate way and in accordance with the policy. The Annual Leave policy in the Employee handbook is absolutely clear. It is clear that this process was not followed and that the Complainant booked flights to travel to Brazil on the 28th of February 2019 to the 18th of March 2019. He also confirmed a medical appointment in Brazil for this time which he says had been hard to obtain. Initially he says he approached NB he Assistant or Operations Manager.

Some confusion as to when he talked to NB. He says in cross examination must have been at the end of January though there is no proof of this. NB advised that RM would not be approving this application at which stage it is common case that the Complainant went straight to RM to make his case. It is agreed by the parties that this conversation took place in the middle of February – about two weeks before the complainant was due to leave.  RM in fact rejects that there had been an Annual Leave request put to him by NB beforehand and states that the first he heard about it was when the Complainant approached him on the 17th of April 2019. No evidence adduced of an Annual Leave form having been filled out in good time though the Complainant says that he had handed one in either to NB or S. The Respondent indicated that he had made arrangements to go on a cycle trip since the previous November and that it was not possible for both himself and the Complainant to be away from the premises on the same dates as they were the only two persons trained up in the security of the premises. The Complainant states that RM asked him to defer his leave request.

NB gave evidence that the Complainant was directly answerable to RM and not to her. She managed the Cashiers. In evidence she denied being the Human Resource Manager and she denied she received a much earlier request for annual leave as alleged by the Complainant. She accepts the Complainant told her about his plans in about the middle of February but that when she raised it with RM she knew there was a clash with RM’s long anticipated cycle trip to Spain. She said that RM indicated that he would pay the difference in the cost of changing the flights but that he would not be sanctioning the request. NB believed that this was a reasonable offer. She had the unenviable task of telling the complainant that if he left as intended, he would be disciplined on his return.

When the Complainant went and addressed the issue with RM asking for the time off his Employer said that those dates did not suit him as he had a long-standing commitment to do a charity cycle in Spain for the dates the 9th to 11th of March. RM asked that the Complainant change his dates so as not to clash with that particular weekend. The Complainant was unable to change the medical appointment and the flight times which had already been booked.

RM was not happy with the Complainant and believed that the arrangements made by the Complainant (ostensibly behind RM’s back) were “disrespectful” of him as an Employer who had always demonstrated great support of the Complainant’s ongoing health worries. RM said in evidence that he believed that the Complainant could have changed his appointment easily. He believed that the Complainant was adamant that he was going and was not minded to change the flights or appointment. There is certainly no evidence of any attempt to try and change the flights etc.

In the end both RM and the Complainant were gone at the same time and the security had to be covered on an ad hoc basis by whichever managers were available at the time. This left the shop vulnerable as both trained security guards were away at the same time.

I believe that the Complainant was in no doubt that his arrangements had soured the relationship between the Respondent and himself. The complainant stated in his own evidence that the Respondent had said that he’d “been cheeky, doing everything behind my back”.

It is noted that when asked what he thought would happen if he headed away anyway that the complainant stated that he believed he would be sacked.

The Complainant in his evidence stated that he believed that he had always gone above and beyond to be a good employee even when there were times when there was a danger attaching to the job such as taking deliveries on his own and intervening when robberies happen. The Complainant says that racial slurs would often happen in this workplace too. It was because of this that he believed he should be given leeway and given full accommodation. The Complainant went on his trip. In Brazil, the Complainant had a number of medical consultations and came back to Ireland much happier about the state of his health and with a new regime of education, understanding and vitamins to take into the future.

On his return the Complainant was invited to a Disciplinary meeting concerning what was now being seen as an unauthorised Leave of absence. This written invitation was presented to him on the 19th of March 2019 the same day as he had re-presented himself for work. A meeting to discuss the absenteeism was arranged for the 21st of March 2019. RM says that he had asked the Complainant about his health before the invitation issued. RM said that there was a discernible change in attitude on the Complainant’s return. He was (in RMs opinion) both brazen and unapologetic.

The Complainant attended the meeting on his own. NB was at the first Disciplinary meeting, and she took the notes and had not heard that the Complainant had any issue with them until much later.  In his defence (at the meeting) the Complainant stated that he had looked for the Leave earlier than the Respondent had learned of the request. He has asked his line Manager (S) and or someone in HR (NB). This has been denied by NB. Either way the Respondent was clearly of the view that Leave of this sort cannot be taken to have been granted unless he - the Respondent - confirms that it is sanctioned. This is clearly stated in the Staff handbook. The Respondent did not want the Complainant taking annual leave at the time he wanted to take it and the Complainant ignored this fact. The Complainant pointed out that the Respondent had always been flexible with him. He denied that these dates were problematic for Mr RM. The implication is that the Respondent was being unreasonable not to be allow the Complainant to put his family and health first. In his evidence RM pointed out that he had up to 90 staff and a large number of them had now been discommoded by the Complainant’s actions. In addition, he pointed out that he could only expect the remainder of his staff to abide by the clearly articulated policies (in the staff handbooks) if he imposed the same obligation on the security officer as he did on them all. His staff couldn’t pick and choose what to follow.

At the time of this meeting, RM states that there was no evidence that the Complainant ever attempted to move his medical appointment before booking flights or after his Employer had indicated that he was not to go at that time. In addition, there is no evidence that the cost of a private consultation in this jurisdiction would be more that the price of flying himself and his family to Brazil for two or three weeks

RM also states that he never saw any medical documents before the departure and is satisfied that none of his management team had had any such documents handed to them.

Another meeting was called on the 3rd of April. This was an outcome meeting. It is noted that the Complainant had not received the notes of the first meeting at this meeting. There was an issue as to documents – whether they’d been provided at the time of the request for Leave. In any event in the course of this meeting the Complainant was advised of the fact that there was a finding of Gross Misconduct.

On the 13th of April the Complainant was formally notified of a finding of Gross Misconduct against him.

The de facto reason given was the disregarding of the clear store policy for notification of request for Annual Leave. The Complainant should never have booked flights in advance of Annual Leave being sanctioned. In his evidence, RM said he saw this sanction as a slap on the wrist.

On balance, it should be noted that I do not think that the finding of Gross Misconduct for the wilful failure to follow procedures regarding the taking of Leave is unreasonable. It is within the range of reasonable outcomes that could have been expected. I would suggest that a termination of Employment might well have occurred in other workplaces for the same or similar insubordination. This sanction was intended to remain on the file for a period of six months only. I suspect the reasonably short duration might well have reflected the Respondent’s desire to draw a line in the sand, move on, and retain an otherwise valuable employee.

Of course, good practise would allow for an automatic right of Appeal and the Complainant does Appeal this decision by letter dated the 2nd of May 2019. In bringing the Appeal the Complainant is making the case that the Respondent did not attach sufficient weight to the precariousness of his medical situation.

At the same time as this issue (concerning the unauthorized leave) was playing out in the workplace another set of issues were also beginning to surface which were to cause further friction between the parties.

Seemingly, on his return from Brazil and the day after he was invited to the first meeting to consider the controversy of his absence, the Complainant wrote (a letter dated the 20th of March 2019) to the HR Manager NB with a number of Grievances. These were set out in a letter and were primarily made against another colleague and reference was made to an argument in the workplace when RM had believed this other colleague over the Complainant. It is not clear to me why the Complainant chose to trigger an ‘official complaint against’ the said co-worker/colleague at this exact moment.Was it just coincidence or was he trying to deflect from the trouble he knew himself to be in?

In any event, this official complaint was not addressed in the process which led up to the Complainant receiving the sanction of a finding of Gross Misconduct. In fact, it appears that NB did not address this issue at all nor did she bring it to the attention of RM (so says RM). Some two weeks after the Gross Misconduct sanction was applied the complainant writes to RM on the 1st of May 2019 stating that the Grievances previously raised on the 20th of March have not been dealt with. The Complainant points out that this grievance should (under the same staff handbook policies that led to his sanction) have been addressed within 10 days. Nearly a month has passed since the Grievance was lodged.

In tandem with this and, as previously stated, the Complainant was also seeking to Appeal the finding of Gross Misconduct on the Grounds that the finding was unfair in light of the medical situation.

In addition, in that letter of Appeal (dated 2nd of May 2019), the Complainant also  raises a fresh Grievance against the Respondent RM wherein the Complainant alleges there have been changes to his working conditions  since ‘the problem began’. The Complainant says the Respondent has been critical of the quality of the work being provided by the Complainant and has accused him of not partaking in the team. In particular, the complainant sees the recent reversal of his parking privileges at the rear of the building as a spiteful move designed to cause stress and anxiety and indeed endanger the Complainant in circumstances where there is sometimes a hostile atmosphere outside the supermarket late at night when the Complainant is locking up.

The letter of May 2nd does not specifically address the question of the change to working conditions and in evidence the Respondent has said that these changes to his working conditions were never identified. It is to be presumed that these are the issues that subsequently come to be raised in the Workplace Relations Complaint Form concerning contraventions of the Organisation of Working Time Act 1997 (Public Holidays and Rest Breaks) and the Payment of Wages Act 1991 (Unlawful deductions from remuneration).

The Respondent replies to the Complainant’s two letters by way of two somewhat short emails sent on the 10th of May. Regarding the Grievances raised back in March, the Respondent accepts that the allegations made by the person complained of were unfounded and states that an apology will follow. The Respondent goes on to suggest he would like to take the opportunity to invite the Complainant to an off-site meeting with both the Complainant and the person about whom he had made the official complaint. The purpose of such a meeting would be to see if there is the possibility of resolving issues. The Respondent also discloses the letter from the neighbouring premises threatening the Respondent with the Fire prevention Officer if the rear car park is not kept cleared – the actual reason for the loss of staff parking facilities.

The Complainant is correct when he says that the Respondent fails to address an issue of Appeal. Instead (in one of the emails sent on May 10th, 2019), the Respondent simply asserts that the finding was fair in the circumstances where the time off was not agreed in advance. The Respondent confirms that this decision had nothing to do with the Complainant’s medical status one way or another and accepts that both he and the Complainant had always had an open communication on that subject of the Complainant’s health. To my mind, it is not acceptable that the Respondent would purport to bypass the right to an Appeal by simply re-affirming his opinion. This shows a basic lack of understanding of Fair Procedures and what comprises good HR practise.

It is important to note that the two emails above referenced did not address or in any other way deal with the new issues raised by the Complainant concerning the perceived change in attitude towards him. The Complainant’s Grievances that RM had made some comments about the standard of the Complainant’s work were not addressed in the May 10th communications

In fact, what happens next is that the Respondent turns the tables on the Complainant and on the 13th of May 2019 the Respondent invites the Complainant to a meeting regarding his work performance.

The meeting is conducted on the 17th of May 2019. RM gave evidence that he did believe that the Complainant’s attitude had changed since his travels. In his opinion the Complainant was clocking in, but security was no longer on his mind. It is clear from the minutes of this meeting that the two men are very far apart. RM tries to confine the issue to the need for the Complainant to improve performance in light of two instances (which RM has recently observed) where the complainant is seemingly distracted from his workbench and security cameras (where he monitors up to 54 screens). He is apparently distracted by members of the public/ex-colleagues with whom he engages in a friendly chat. The Complainant states that the Respondent has never before found such fault with his work and is now making up new rules. The Complainant says that he had never before been told he could not move from his desk and he always felt he could when, in his judgement, it would be appropriate or acceptable to do so.  

It is worth noting that NB stated that she had always understood that the Security officer should not be distracted, be called from his desk or allow others take calls at this desk. She did confirm however that she had seen people taking personal calls at the security desk. It was happening albeit not flagrantly in front of RM. I understand that NB’s employment came to an end in April 2019.

Another issue which came into focus was how the Complainant believed he was being treated by the Respondent. I fully accept that there had been at least one angry and public exchange on the floor between the two in the period of time from the Complainants return from Brazil and this date in May. The Complainant says this was indicative of the Respondent’s changed attitude towards him. He said in his evidence this row had concerned the gradual change in his shift pattern around this time. As the Complainant was only contracted to work 45 hours, he was unwilling to work more hours without pay. Both parties were demanding respect from the other as part of this exchange. The Complainant believed that there had been a gradual movement to control the Complainant’s break time by the Respondent. Before it had been flexible and at the Complainant’s discretion, now the Respondent was imposing the break time seemingly to make the Complainant’s life difficult. A break two hours into a 9-hour shift was not for the suitable.

The Complainant says RM was intervening where he never had before. He was issuing instructions as though they had always been part of how the Complainant should have been performing his job whereas the Complainant felt he was imposing new rules. An example of this was not allowing members of staff to use his desk on the floor to take phone calls. As previously stated, NB recognised this happened from time to time. When this happened just before the Performance meeting, RM gave him a dressing down in public and in front of customers over this incident which the Complainant believed was intended to humiliate him. He believed there was a campaign to find fault all the time.

In the course of the meeting on the 17th of May 2019 the Complainant says that the RM again reiterated that he did not trust the Complainant who was not a part of his team.  It is noted that the Complainant does not fully agree with the content of the minutes of this particular meeting, and he recalls more having been said than is disclosed in the minutes. The Complainant says RM was basically accusing the Complainant of not working as he had been (before the trip away) and that the consequence of this was increased robberies – not helped by the fact that the Complainant was leaving his desk and on the floor when he shouldn’t be. The Complainant says this meeting became argumentative. In fact, his own witness at the meeting intervened and also chided RM.

The Complainant asserted in the course of the meeting that RM was conducting a campaign of bullying him. Needlessly criticising his performance (which the Complainant claimed remained unchanged from how he had performed his job prior to going to Brazil). Publicly humiliating him on the floor and belittling him in front of colleagues. When challenged on this in cross examination the Complainant says that RM said I don’t want you to leave but I don’t trust you with the security in my store. The messaging appears to have been conflicted.

It is interesting that at a point unknown to the Complainant that RM had dismissed NB (apparently since early April 2019) and the fact that she was barred from the shop was not made known to the Complainant as the Security Manager. This is not in line with what would be anticipated to be normal interchange of information. To my mind this is a clear indication of a breakdown in communication. In the meeting when he raised the issue of never having been informed that NB had been dismissed, RM told him to mind his own business.

The evidence of one witness RMcM a sales Assistant said she’d seen a good relationship between the two men deteriorate in the aftermath of that trip to Brazil. She personally overheard RM shouting at the Complainant by the coffee machine after the complainant had queried the rosters. She recalled the incident where a member of staff had been given access to the Complainant’s phone and RM gave the complainant a dressing down in front of everyone. RMcM said it was the tone of these interactions that she had noted. She had thought it odd in circumstances where she herself occasionally used the security desk phone and in fact she still did. RMcM was still working for the Respondent when she gave this evidence. She also gave evidence that she had lunch with the complainant sometimes and that it was true from time to time he’d have to cut his lunch short if he was being sought over the tannoy. It’s worth noting that this witness confirmed that she heard the Complainant being described by co-workers in derogatory way and relating to his race. She told the Complainant but otherwise said nothing to management.

Most surprisingly, in the middle of that meeting in May the Complainant was issued with a verbal warning. It is noted that this meeting was not presented as a Disciplinary meeting but as a Performance meeting so I would accept that this was a startling outcome for the Complainant. To my mind this is again indicative of RM’s failure to understand what constitutes fair and proper procedure in the HR context.

It is interesting to note that both parties give evidence that the Complaint stated that he felt bullied in this meeting and by the general behaviour of the Manager towards him. The response to this has been to show me the section in the employees handbook which reads:-

‘It is also important to note that Bullying is distinct from legitimate and reasonable criticism of an individual’s conduct, work performance or attendance by a manager ’

This is a reasonable distinction to make but I am not convinced that it categorically applies in these circumstances. On balance I believe and accept the Complainant’s evidence that the Respondent did indeed make his life more difficult in  the aftermath of the debacle concerning his unauthorised absence.

On the 12th of June 2019 the Complainant tendered his resignation. It is worth noting that the letter of resignation handed to RM that day does not cite the sanction of the Gross Misconduct finding as having been a factor in the decision. The Complainant exclusively relies on the interaction between RM and himself (since his return from Brazil) as being the cause for the decision. The complainant feels he is being picked on, treated unfairly and criticised by RM.

I note that the letter of resignation is the first time that the Complainant cites that he was not getting proper breaks though does not elaborate on this allegation. The only other evidence provided on this topic was from NB who was satisfied that RM covered the Complainant’s breaks and never heard any complaint made about the breaks not happening.

The Complainant has concluded that he is being pushed out in an unfair and calculated way and that he has to tender his resignation for the good of his health.

RM writes a response expressing regret and offering an opportunity to invoke the Grievance policy he expresses disappointment not to have been given the opportunity to deal with the Grievances. To my mind, this is somewhat disingenuous given the way the last meeting had been handled where a performance meeting ended up with a Disciplinary sanction. Could the Complainant really expect a fair and balanced assessment of his Grievance. When he raised a Grievance, he was brought in for a poor performance which resulted in a Disciplinary sanction. There is no structure or certainty in the procedures being applied here. The difficulty is that RM seems to be the first and last port of call for any issues arising in the workplace. There is no Identifiable HR function. An example of this was the failure to acknowledge that the Complainant had requested an Appeal. RM ignored this by simply asserting the correctness of his original finding.

This letter of the 17th of June invites the Complainant to re-consider his position. RM said he was really surprised at the letter of resignation. He had found the complainant’s work had improved since the meeting in mid-May and had believed they had all moved on now from the fallout from the trip abroad. The Performance review was done and dusted.

Having carefully reviewed the chronology of events, I am satisfied that a Constructive Dismissal has occurred. I believe that the Complainant tendered his resignation because the employment relationship between himself and RM had irreparably broken down. This does not necessarily stem from the initial finding of Gross misconduct. I think objectively the Complainant was (and should have known he would be) sanctioned for a failure to follow a clear company policy for taking Annual Leave. The Respondent has consistently maintained that the finding of Gross Misconduct was for not following proper procedure in terms of providing at least four weeks’ notice. RM genuinely believed it was nothing personal- as Manager he had to be seen to sanction such wilful insubordination

I do accept that the Respondent (whether knowingly or not) became more hard-line with the Complainant after this episode. I accept he tried to micro-manage the Complainant and became increasingly more critical of his work. He did not draw a line in the sand as he had intended to. I accept the witness evidence that the Respondent gave the Complainant a vocal, public and humiliating dressing down on up to two occasions on the shopfloor. To my mind an Employer is failing if he or she has to resort to such an unedifying scene.

For such an experienced Manager with such a successful business the Respondent has a surprisingly casual approach to the requirement to have good HR operations in the workplace. In evidence he stated that a ‘good organisation shouldn’t need a HR department’. To my mind there can be little reality to this aspiration, especially when you are dealing with 70 different and diverse members of staff. It was clearly in these circumstances of not having a professional HR operation that there was a failure to adequately and efficiently to either recognise and/or deal with the Complainant’s legitimate issues as and when they were flagged. It is not enough to say he had access to HR resource with the parent body. If he does not utilise it then it is the same as not having any.  For reasons only he knows he kept control over everything without having a good understanding of what good HR means. For example, to turn a performance meeting (somehow called in response to a Grievance) into a disciplinary meeting without reason is just not acceptable. For example, suggesting that a three-way meeting to mediate between two members of staff without actually following up and doing it does not lead to good relations. To brush off an application for an Appeal demonstrates my mind the lack of HR direction. I am satisfied that the Complainant could have no confidence in the internal processes when he tendered his resignation.

I do accept that the one-month delay between the performance/disciplinary meeting of the 17th of May and the letter of resignation in the middle of June does somewhat negate the idea of the Complainant’s position being untenable and requiring urgent termination. This delay has not been satisfactorily explained to me and I must consider the implications of this delay in any final redress.

Concerning evidence of mitigation of loss, I note that by March 2020 he had found employment for 20 hours a week and was doing nightclub work to supplement this work with the less sociable hours associated with this change. The Complainant has demonstrated a proactive approach and I note he is involved in training as a health and Safety Officer and has been studying IT in evening classes.

Regarding the separate complaints (outside the issue of Unfair Dismissal) RM is adamant that the complainant always got his breaks. He described the Complainant as being a picky guy who always took what he was entitled to. He is adamant he gave the appropriate break in the day. Security Officer starts at 1and he would give break around about 5 or 6 finishes at 10. He additionally does not accept that there was any money due and owing for the purposes of remuneration. In the course of evidence, we examined the various time sheets applicable to the employment and I remain unconvinced that any of the three complaints raised herein are substantiated.

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

CA-00033254-001 I accept that the conduct of the employer was unreasonable and without proper cause and its effect on the employee when judged objectively and reasonably and  has convinced me that the employee cannot be expected to put up with it. The Complainant was Unfairly Dismissed.The Complainant is entitled to redress in the form of compensation for financial loss attributable to the dismissal. I award the sum of  €25,000.00.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033254-002 – This Complaint is not well founded

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033254-003 - This Complaint is not well founded

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033254-004 - This Complaint is not well founded