EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD2176/2011 WT891/2011
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Taaffe
Members: Mr D. Peakin
Mr M. O'Reilly
heard this claim at Dublin on 15th March 2013 and 2nd October 2013 and 3rd October 2013
The determination of the Tribunal was as follows:-
The claimant was employed as a trainee manager in a supermarket chain. He had previous experience with the respondent over the course of eight years where he worked himself up to assistant manager. He then went travelling and on his return was re-employed. He was offered the role of trainee manager and received a contract which he did not sign as it was titled shift manager. No role description was ever received.
On his first day in the position he was given the keys, told what was what and left on his own to lock up at 11pm. His first roster was for four weeks, 45hours over 7 days.
The claimant felt that things changed for him when he sought to join a trade union in February 2011. On 21st February he was called to a review meeting, he was given no notice of it, just called in by RC his general manager. The outcome appeared fine, RC was happy with him and there were no issues. Two days later the claimant was asked by DP (operations manager of the business) to step into his office. He was told he had failed his probation and that it was being extended by three months. The claimant was confused, he still had no role profile, points made were never broken down but he said he would “put his head down and do what he could”.
R left the company and a new manager J was put in place. An incident occurred on Easter Saturday when the claimant was sick at work. He asked J if he could go home, she said hold on until I get someone. EG director/owner showed up and said no wait until DP arrived. DP said he could leave if he got a doctor’s note. The claimant ended up not going home but doing a two page document about issues in store and PD told him he would look at it, said he had some very intelligent points. Another incident occurred when he rang in sick on 6th May. It was his girlfriend’s birthday and he rang from her house. She was having drinks that night and DP arrived at her house. The claimant assumed that as he wasn’t invited he was there to catch him out.
On 8th May he was handed a letter re- his review meeting. The letter indicated that absenteeism and attitude were on the agenda. The meeting was attended by a HR representative who took notes and the claimant took his father as a witness. It was not a review meeting, no sheets were filled out and it was general discussion about the claimant’s views and his absenteeism. The claimant then received a letter to attend a disciplinary hearing citing his attendance at a party while out sick as gross misconduct and advised that the outcome could lead to his dismissal. He also received a letter inviting him to a meeting to discuss the outcome of the review. It was agreed that both discussions would take place at the same time but the disciplinary didn’t happen as he was told that new evidence had come to light. Following the meeting he was put on a performance improvement plan (PIP) for a period of two months.
He was more confused than ever as he had to design the plan but not told what needed improving. The investigation meeting was re-scheduled for the 18th May and the claimant sought clarification as to what type of meetings he was attending. The meeting was re-scheduled for 3rd June. He provided a sick note for the episode on 6th May and the disciplinary was not pursued. He ended up back with his doctor and was on sick leave sick leave due to stress until 20th June. On his return he was advised that he could not work until he provided a fitness to return to work certificate.
Many e-mails requesting information and talking about rosters passed between the claimant and DP culminating in an e-mail on 26th July where the claimant asked DP to treat him with some respect and to stop ignoring him. He then received a letter from DP (dated 27th July) asking that he put all his issues in writing. The claimant sent an e-mail to EG on 28th July stating that he felt bullied and requested 3rd party involvement. He then got a letter on 29th July providing him with the company’s grievance procedure and bully and harassment policy. A follow up e-mail advised him that an independent HR consultant (CI) had been appointed. A meeting was held with CI on 5th August and he disagreed with the notes provided after the meeting. He also discovered previous correspondence between CI and EG, so felt she was not an independent 3rd party. He received a letter from EG dated 25th August stating that he hoped it clarified his grievances. He considered his position untenable and resigned.
Under cross examination the claimant said that a new manger had changed the rosters and he had issues with it. Asked if it was the employer’s prerogative to change them he agreed. He also agreed that his PIP was put on hold while he was on sick leave. He stated that making formal complaints was the last thing he wanted to do.
DP gave evidence of knowing the claimant for a number of years. He had previously been a manger but had walked out after a few days. He had faith in the claimant and knew that he was capable of doing the job but he could be stubborn and would think he was right no matter what. He had 10 years of experience in stores and from day one he was clear on the job and its requirements. RC done his first review and then spoke to EG. It was standard procedure. RC would have advised EG of his attitude and maybe he wasn’t taking the role seriously. At the meeting of 8th May the claimant seemed surprised because he felt there were no issues with his role but DP said there was a problem with his attitude.
Regarding the episode on Easter Saturday DP said that when he arrived at the store the claimant was offered the opportunity to leave. They both started talking about the store and DP asked him to jot down notes. The claimant than said he was ok and it was left at that. A doctors note was only required if out for more than 2 days.
DP said that the party at the claimant’s girlfriend’s house was an invitation on Facebook. Both his girlfriend and the claimant’s girlfriend were friends and had a lot of other friends in common. That was why he went, not to catch the claimant out. Once a medical certificate was produced for the day in question the matter was dropped.
DP did not find the interference of the claimant father helpful during the meetings. He wanted the claimant to speak for himself. He said that because of the amount of e-mails and conversations things became very confused and that is why he looked for everything in writing on 29th July. That was the first the respondent knew of any allegation of bullying and it was acted on immediately.
Under cross examination DP said that he wasn’t surprised that the initial probation period was extended, sometimes the claimant wouldn’t listen, he just didn’t take things on board. He confirmed to the Tribunal that no notes of this initial review were available and that RC no longer worked for the company. He would not be appearing before the Tribunal to give evidence.
CI told the Tribunal that she was asked by EG to investigate the claimants grievances. They met on 3rd August and she forwarded the minutes to the claimant on 9th August. He said he had issues with them and send his version to her. She made attempts to contact him and wanted
another meeting to clarify issues but he did not respond.
Asked if following a letter from EG on 25th August was it fair and reasonable for the claimant to consider the matter concluded CI said she didn’t know, didn’t think so, she wanted him to respond to her requests for another meeting.
EG director gave evidence of being told by RC that he had concerns with some issues in relation to the claimant. He asked RC to contact DP and arrange a meeting where the claimant could be made understand the issues. They met two days later and explained to the claimant that there was no problem with his general work, it was his attitude and attendance. EG confirmed that the notes of the meeting of 9th May were accurate.
The respondent wanted three issues addressed, the claimant wanted his issues addressed. He stated that the PIP never got off the ground because of the claimants absences/sick leave.
EGs letter of July 28th was his final attempt to resolve matters. He asked for any outstanding matters to be put in writing and enclosed the bullying and harassment policy with an offer to hire an independent person to oversee the grievance. He did not consider his letter of 25th August as the final step. It was just his considerations, his take on things.
Prior to the presentation by the respondents of their case and following the completion of the claimant’s evidence an application to dismiss the claimant’s case was made. It was submitted by the respondents that the claimant had not established, by virtue of the evidence presented, that they had a case to answer.
The Tribunal considered the application and ruled that it was satisfied that a sufficient case had been advanced so as to require the respondent to answer it. The application was therefore refused.
The Tribunal carefully considered the evidence adduced (both verbal and written) and the submissions made. Since the claimant is claiming constructive dismissal it is for him to establish that he was unfairly dismissed. It is common case that the claimant was employed as a trainee manger whose position was reviewed after the completion of his probationary period of six months. The outcome of this review is disputed by the parties. It is the claimants assertion that his manager conducted this review and that no issues were raised by him. The respondents contend that they made contact with the claimant after meeting his manager and raised concerns that were reflected in a short letter to him. No written minutes or report in respect of this review were available. Additionally the manger referred to, was not called to give evidence. The Tribunal is therefore unable to satisfactorily resolve this important matter.
The Tribunal is satisfied that tensions presented following this disputed review which remained for the duration of the claimant’s employment. Responsibility for these tensions is not apportioned exclusively to either of the parties.
The issues which the Tribunal consider that require need to be addressed are
· whether the claimant was bullied
· if so was the claimants response in resigning proportionate to the circumstances that arose following the lodgement by him of his bullying complaint for investigation by the respondent and finally
· was there present in the claimants behaviour (a) a procedural deficit and (b) was it of sufficient consequence so as to invalidate his decision to resign.
The Tribunal finds and determines
(a) That there was bullying of the claimant by the respondent which culminated in the appointment by them of an independent consultant without any consultation with the claimant to investigate the complaint of bullying made and whose appointment the claimant objected to on what the Tribunal consider to be justifiable grounds.
(b) That the claimant’s response in resigning was in all of the circumstances fair and reasonable.
(c) That there was a procedural deficit present in the claimant’s behaviour in resigning prior to the completion of the investigation of his complaint.
(d) That this deficit was not of sufficient consequence so as to invalidate his resignation.
It is therefore found that the claimant was unfairly dismissed. In respect of the duty of the claimant to mitigate his loss the Tribunal is satisfied that the claimant discharged this duty. The Tribunal awards the claimant a sum of €5000.00 as compensation in respect of his dismissal.
No evidence was adduced in relation to the Organisation of Working Time Act, 1997 therefore this claim fails.
Sealed with the Seal of the
Employment Appeals Tribunal