Worker

Employer

Anonymised Parties

Employer Services Consultant

Consultancy Services Provider

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

30/09/2021

The Employee commenced working on 20 February 2017 as a consultant linking those applying for jobs with potential employers. His salary per month was €3291.67 gross; net €2787.78. An issue arose regarding the processing of incorrect data. The Employee was given a written warning and instructed to engage with a retraining programme. The Employee asserts that the Employer did not act reasonably when conducting and concluding the disciplinary procedure. The Employee felt the result of the process left him with no other option but to resign and he did so on 21 September 2021. He is seeking a declaration that the Employer acted unfairly in evoking and conducting the disciplinary procedures up to the termination of his employment, which he contends amounted to constructive dismissal.   

The Employer refutes the Employee’s assertions. The Employer submits that it conducted a fair and transparent disciplinary process resulting in the Employee receiving a first written warning. Notwithstanding this outcome, the Employer argues that the Employee proceeded to resign without raising any formal grievance or affording the Employer a reasonable opportunity to address any perceived issues the Claimant may have had.

On 26 June 2021 the Employee received an unscheduled call from the HR Manager. She stated that alleged falsification of information and alleged manipulation of software, on his part, had come to light and "in light of the severity of these allegations we are suspending you with pay pending a full investigation as per the disciplinary procedure".

He attended the remote disciplinary investigation call on 8 July 2020. He had prepared a statement which refuted all allegations of intentional wrongdoing. He had been following practices and processes which had been accepted, without question, since he joined the team in September 2018. There was no training provided, he learned perceived best practise while on the job. He outlined the only two outcomes he envisaged as follows: (a) he to resign his position and pursue a subsequent constructive dismissal case or (b) discussions to commence   on redundancy options. He stated to the investigating team that he would need a resolution in writing before 24 July 2021.  

On 26 July the HR Manager rang him and mentioned a possible "termination payment" arrangement comprising a sum of €3000 based on the statutory calculation. He stated to the HR Manager that this was not a fair compensation for the stress and anxiety he had been experiencing due to the unwarranted suspension.

At that point the Employee consulted his solicitor who wrote to the company requesting them to explain their actions against him, and amongst other things, stating that the Employee was not afforded due process when the company moved to immediately suspend him for what should have been treated as administrative errors. The solicitor also pointed out the “normal” approach to a disciplinary issue does not usually warrant immediate suspension, having not issued verbal or written warning.

The Employee fully engaged with the disciplinary procedures upon advice from his solicitor. The Employee was issued with a first written warning and was required to attend the office five days per week for the duration of the 9-month warning, even though all other staff are not required to be onsite. He was also requited to complete all the modules in the Employer’s training programme.

The Employee asserts that the requirement to fully retrain was a shock to the system. He always believed he had fulfilled his role as consultant with honesty and integrity. He contends that senior management in the company had railed against him over the years and that the disciplinary action was the final straw which he believes left him an untenable position.

The job of the consultant is to place people in jobs with prospective employers. The Employer has a public contract with strict auditing provisions. Documented emails and phone calls need to be properly recorded in the system. The Employee was not following the system and there were serious data anomalies inputted by him, specifically regarding follow up phone calls with the employers. This was brought to his notice on previous occasions, but the matter became serious when it was discovered that there had been numerous critical anomalies in his work practice.

 The HR Manager informed the Employee that there were concerns that he had allegedly falsified the jobs and verification processes.  There were also concerns of manipulation of the company’s recording system. The Employee was informed that due to the severity of these allegations he was being suspended, with pay, pending a full investigation as per the disciplinary procedure. He was informed that no decision would be made until a full and thorough investigation was conducted and he had been given the opportunity to respond. He was requested to attend a disciplinary investigation meeting.

The Employee attended the meeting on 8 July 2021 and requested to read out a written statement that he had prepared. He refused to engage in the online meeting and subsequently left the call. In a subsequent call with the HR manager a termination payment was discussed. The Employee refused to attend a subsequent meeting scheduled for 27 July 2021 on the basis that he was seeking legal advice from his solicitor. The Employee eventually attended the reconvened investigative meeting on 20 August. The investigative report was completed on 6 September and a disciplinary hearing took place on 10 September.  At this meeting the Employee refused to provide a coherent and satisfactory explanation for his behaviour despite admitting to not following the correct process and failing to perform the calls which he had documented that he had made without in fact making the calls. The Employee did not demonstrate any remorse or accountability for his behaviour and sought to evade all responsibility for his actions.

The outcome meeting took place on 16 September 2021 whereby the Employee was issued with a first written warning for 9 months. It was also recommended that a performance support plan   and a training plan be implemented, as well as a requirement to be on site for five days a week.   The Employee was offered an appeal process, of which he did not avail. The Employee resigned on 20 September 2021.

The Employer submits that there was no fundamental breach of the Employees contract that would allow him to resign based on unreasonable behaviour.  The Employer contends that its actions were not a repudiation of the contract of employment and did not demonstrate that the Employer no longer intended to be bound by the contract. No change occurred in the contract to make it so radically different from what was before.

It is the Employer’s position that in advance of the Employee furnishing his resignation, he could have notified the Respondent of any concerns he may have had in relation to his employment and utilised internal procedures to resolve any grievance, which he failed to do. The Employer maintains that the Employee acted in a wholly unreasonable manner by resigning from his position in the manner he did, particularly having been brought through an exhaustive investigation process which comprised several meetings with his employer and an appeal process which he failed to utilise.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties. I noted in this case that there was no dispute about the facts on the substantive issue that gave rise to the disciplinary process. The Employee admitted to not following the correct procedures regarding the input of data, for which he was responsible. The issue to be decided here is whether the behaviour of the Employer in initiating and conducting an investigative disciplinary was so unreasonable, that when taken with the outcome of the procedure, it constituted a fundamental breach of the contract of employment to the extent that it left the Employee with no option but to resign.

I note that the Employee did not any argue any specific point about the unfairness of procedures as they were applied to him, for example, identifying a breach of the Code of Practice on Grievance and Disciplinary Procedures per SI 146 of 2000. Furthermore, the Employee did not engage with the Employer when the investigative process began, and it was only after advice from his solicitor, that he changed his mind at the time. I note also that he did not avail of the opportunity to appeal his sanction. Before an employee can state that an employer acted unreasonably in invoking a disciplinary procedure there is an obligation on him to also to act reasonably. Reasonable action in this instance would have been full engagement with the procedure, including, if necessary, appealing the contested sanction imposed. The Employee did not help his case by his initial refusal of cooperation and his subsequent decision not to appeal.  After hearing both submissions and reading the supplied uncontested documentation, I can only conclude that the Employer conducted the procedure in a fair and transparent manner and I saw no evidence of unreasonable behaviour on its part.

The Employee admitted that he did not follow correct procedure when inputting data but argued in mitigation that his line manager approved of the system that both had adapted.  The Employer took this mitigation into account and imposed a first written warning. The Employer submitted that a staff member was dismissed in another location, for a similar offence. Having heard the submissions on the sanction, it is clear to me that under the circumstances, a first written warning could not be considered draconian under the circumstances. The Employee argued that he felt somewhat humiliated by the further requirement to retrain on the operating system. However, in the greater scheme of things, it was clear to me, and indeed admitted by the Employee, that he did not follow the required protocol when logging phone calls in an environment that was subject to strict auditing by a public body. A requirement to retrain on correct procedures in such circumstances cannot be recognised as excessively punitive.

This claim is brought under the Industrial Relations Acts where the Employee refers to constructive dismissal. Though not a dispute of right there is an obligation on me to give more than a cursory nod to an established principle in relation to constructive dismissal adopted by the higher Courts, that there exists a burden on the employee to demonstrate that the employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

Having considered all the submissions in this case, I conclude that the Employee did not demonstrate to me that the Employer's conduct was so unreasonable as to make the continuation of employment with the Employer intolerable and therefore I recommend that the Employee’s claim of constructive dismissal should not be conceded.

Section 13 of Industrial Relations Act 1969