Complainant

Respondent

Parties

David  Doran

Employ Ability Company Limited by Guarantee St. John of God Hospitaller Services Group

Representatives

Yvonne O Callaghan SIPTU Trade Union

Eoin Haverty

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-00042150-001

26/01/2021

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

CA-00042154-001

26/01/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

It was confirmed at the outset that the second complaint (CA-00042154-001) was a duplicate and could be discarded.

The complainant gave his evidence under oath while the two witnesses for the respondent gave their evidence under affirmation.  Both parties were given the opportunity to cross-examine the other party’s evidence.

The complainant submitted that he was employed with the respondent initially as a Job Coach on 10/09/2018.  He was appointed as Coordinator from 22/03/2019 with a probationary period of 12 months.

The complainant submitted that he was not given any formal training or shadowing for this role but rather a number of one-to-one meetings which lasted no more than 30 minutes.

The complainant submitted that he sought the assistance of the Board Chair in dealing with a number of difficulties that arose and was informed that the Chair would get back to him.  The Chair never got back to him.

The complainant submitted that he engaged with the HR section for assistance from May 2019 in relation to a number of employees.  The Chair had a meeting with these individuals without the complainant being made aware.  Ultimately this resulted in the complainant being invited to a mediation process.  He was informed that this process was unsuccessful and was asked whether he wished to proceed to an investigation process.

In October 2019, the complainant made a complaint to the respondent that he was being bullied and a month later he was invited to a disciplinary meeting to address his ‘performance concerns’.  He submitted that at this point he had not received any performance appraisals.

The complainant was informed in December that he was being demoted to his previous position as Job Coach.  He submitted that his probation period was cut short, and he was demoted from the coordinators position back to the position of job coach in March 2020.

The complainant submitted that as a result of how he was treated, he was left with no alternative but to seek alternative employment and in July 2020 he resigned to take up a position with another employer.

The complainant submitted that he was out of work for four days and submitted evidence of his loss of earnings.

The respondent submitted that under the terms of the Unfair Dismissal Acts, 1997 – 2015 the complainant has to establish that he was entitled to terminate his contract where the employer has breached its contract or that the employer acted so unreasonably that the continuation f the employment was intolerable.  The respondent submitted that he has not met wither criteria.

The respondent submitted that at any time the complainant could have submitted a grievance but chose not to do so.  Accordingly, he did not exhaust the respondent’s internal procedure and this element if fatal to his case.  It submitted that in the case of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The Complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found: “the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. The Tribunal thus found in that case that the Complainant was not constructively dismissed.

The respondent submitted that the company was entitled to terminate the complainant’s probation in a situation where he was not achieving satisfactory results.

The respondent submitted that it did not demote the complainant but rather, he sought to have his old role back.

Section 1 of the Unfair Dismissals Acts 1977 states that

dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) 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 of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

The respondent suggested that In light of the definition contained in Section 1(b) of the Acts , and established principles adopted by the WRC and the Courts, a burden rests on the employee to demonstrate that either the employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or the employer 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 that it is only when either of the above criteria have been met that an employee is entitled to terminate the contract of employment. The respondent submitted that neither of the criteria has been met.

The complainant submitted that he was appointed to the coordinator position with little or no training or support.  The respondent denied this.  However, when this aspect was pursued with the witnesses for the respondent, they were not in a position to provide any detail of supports or training provided to the employee.

The complainant submitted that by the respondent’s behaviour in relation to not investigating his complaints and in relation to his demotion, it had breached the contract.  The complaint outlined events whereby he sought the respondent’s assistance in terms of training and dealing with difficult staff but rather than receive the help he sought, he was undermined by the manner in which the respondent went behind his back and did not keep him informed of the progress of his complaints.  He also outlined how the respondent used his efforts to get assistance to undermine him further.  The complainant outlined how he sought the assistance of the HR function but that despite his best efforts, no assistance was forthcoming.

When giving his evidence, I found that the complainant gave his evidence in a clear, concise manner and without regard for whether the evidence showed him in the best light.  Two witnesses gave evidence for the respondent, the first gave his evidence in a clear fashion, indicating whether events had taken place and generally came across as providing his testimony in a straightforward manner.  The second witness gave his testimony in a less satisfactory manner, having limited recall of certain facts and dismissing matters by indicating that if matters were written down then they must have happened that way. 

The complainant suggested that his removal from the position of coordinator was a predetermined outcome and that no performance meetings were held with him other than those that indicated that he was being removed from his position. He also submitted that he did not receive assistance from the HR function of the Chair of the Board when he sought it. 

Arising from questioning as regards the investigation process, it became apparent from the witness’s responses that the respondent did not follow any set procedures regarding the investigation of allegations made by the complainant or allegations made against the complainant. Rather, it appears that the decision to dismiss the complainant’s complaints and to proceed to investigate the complaints made against the complainant was made unilaterally. 

The documentation submitted by the employer indicated that the decision to demote the employee was taken by the Board.  However, when one of the directors who was present as a witness was asked about the Boards discussions that led to this decision to demote the employee, he indicated that no such discussion took place.  The Chair, who was also present as a witness, when asked how this decision came to be made, indicated that he didn’t recall but indicated that it must have been made because that what the documentation said.

Having considered the written and oral submissions made in relation to this dispute, I can find very little evidence of the existence of documented processes or staff supports, and therefore conclude that such processes, where they exist, were not sufficient to deal with a workforce employed by the respondent.

On balance, I find that the complainant was the more compelling witness, supporting his version of events with notes and copies of letters for the respondent.  I prefer the complainant’s account of events. 

In the circumstances I am satisfied that the complainant has established that the respondent behaved in such an unreasonable fashion as to render his continued employment intolerable.

The respondent submitted that in the case of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The Complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found: “the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and stated: “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. The Tribunal thus found in that case that the Complainant was not constructively dismissed.

I note that the complainant did not exhaust the internal procedures that were available to him.  During the evidence of the respondents witnesses it became apparent that when the complainant made his complaints, they were not investigation in any methodical or proper fashion or in accordance with any procedures laid down by the respondent.  I am satisfied that the complainant has shown good cause as to why he could not rely upon the complaint or grievance processes of the respondent.  Accordingly, I find that the complainant has established that his resignation amounts to constructive unfair dismissal.

The complainant outlined his loss of earnings as follows: Following demotion, the difference between his salary amounted to €1939.33 for the 4-month period.  4 days between end of employment and taking up new employment amounting to €492 and a difference in salary between his former and current employment of €1,649 for the initial 12 months.  He submitted that his total loss of earnings amounts to €4080.33.  This was not disputed by the respondent other than to indicate that it had no assets.

Having considered the written and oral evidence from both parties, my decision is that the complainant was unfairly dismissed.

In accordance with Section 7 of the 1977 Act, I award the complainant compensation equal to his financial loss, i.e., €4080.33

Unfair Dismissal, compensation