ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000629
Complaint(s)/Dispute(s) for Resolution:
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-00000898-001 | 17/11/2015 |
Date of Adjudication Hearing: 15/03/2016
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
1. Preliminary Matters
At the outset of the hearing the details contained in the Complaint Form were confirmed by both parties. The parties agreed that the gross monthly rate of pay of the Complainant was €1,698.67. The preferred redress of the Respondent was compensation. The preferred redress of the Complainant was also compensation. Dismissal is in dispute in this case. |
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2. Complainant’s Submission and Presentation:
As dismissal is in dispute in this case the hearing commenced with the Complainant's evidence. The Complainant's representative tendered a Booklet of Documentation on the day.
The Complainant's representative submitted that the Complainant had commenced working with the Respondent in a "for services" capacity, three days a week, in October 2012. The Complainant carried out several office management roles. Another woman was taken on in October 2013 as an employee. The Complainant was keen to regularise her position and after protracted discussions it was agreed that she too would be taken on as an employee (contract of services) from 3rd February 2014.
In January 2016 the Complainant suffered an injury which prevented her from attending for work for seven weeks. While the Complainant was absent another woman was brought in on a temporary basis to do much the same work as the Complainant had been doing heretofore. When the Complainant returned to work she felt increasingly isolated.
The Complainant stated that this isolation was manifested itself in several ways including; not being invited to meetings, not being required to do bank transfers, not being involved in the billing procedure, and importantly not being given any new work, she had to deal with legacy cases while the new employees were given new cases. As this situation continued the Complainant began to feel more isolated and demeaned.
On 24th June 2015, the day the Complainant was going on holidays, the Respondent spoke with her and put it to her that her job was gone and that she either accepted a severance package or apply for a new marketing role. The Complainant submitted that she would never get this role and that the Respondent was only paying "lip service" to the procedure. The Complainant was shocked. She was a given a letter by the Respondent which he told her to read. He then took her keys, zapper and "escorted her to the car park"; she felt she had been dismissed, she was very upset at the events.
It was the Complainant's case that the letter given to her on 24th June confirmed her belief that she had in fact been dismissed and any reference to alternative employment was disingenuous, particularly after she had been demeaned and isolated for a long period. A line in the letter in which the Respondent wrote that he would like to take the "opportunity to thank you for your contribution and wish you well in the future", was highlighted by the Complainant as an indication that she had indeed been dismissed.
In direct evidence the Complainant outlined the ways in which she believed her role had been undermined up to the date of the alleged dismissal. She also gave evidence regarding the events of 24th June and her belief that she had been dismissed which had caused her great distress.
Subsequent to the 24th June there were a number of letters and emails between the Complainant, the Complainant's legal representative and the Respondent. In any event the Complainant's view was that the actions of 24th June and before were such that she was left in no doubt that she had been dismissed. Nothing in the correspondence that followed changed her mind in that respect. The Complainant did not process a grievance through in line with the Company Grievance Policy as she would have dealt with the Director with whom she held a grievance.
3. Respondent’s Submission and Presentation:
The Respondent tendered a written submission on the day of the Adjudication Hearing. In an initial response to the Complainant's evidence the Respondent denied that the Complainant had been isolated or demeaned at any time during her employment with the company.
The Respondent submitted that the Complainant had been employed on a contract of service from 1 March 2014 as an Office Administration Manager. In June 2015, against a challenging market background, the company decided to restructure by reducing the administrative support function and increasing the marketing function; the separate roles of Marketing and administration would be combined into a single new role of Property and Marketing Administrator. The essential requirements of the new role required a different skill set than the Office Administration manager.
On 24 June the Respondent met with the Complainant to discuss the proposed restructuring and gave her a letter outlining the main points of the meeting. The letter included information on the selection process that would be initiated to fill the new post and information on a Voluntary Severance Package that would be available if the Complainant either decided not to apply for the new post or was unsuccessful in the selection process to fill the post. The Complainant sought an extension of time to consider her options. The Respondent submitted that the Complainant was advised that he would consider providing training for her in order to qualify her to take on the new role.
The Complainant did not return to work following her holidays and on 23 July the Respondent was surprised when he received a letter from the Complainant's solicitor alleging that she had been dismissed, seeking reinstatement or compensation; as far as the Respondent was concerned she was an unauthorised leave.
Further correspondence was exchanged between the parties, with the Respondent denying that a dismissal had taken place and that the Complainant should return to work to commence the consultation process. In a letter of 31 August the Complainant's solicitor wrote to the Respondent stating that she was prepared to return to work. The Respondent acknowledged this letter and confirmed that the Complainant should return to work and the consultation process could commence. However, some days later a letter was received from the Complainant's solicitor stating that she was not willing to return to work and wished to discuss a severance package. No agreement was reached on a severance package and the matter was referred to the Workplace Relations Commission by the Complainant.
In direct evidence a colleague of the Complainant's denied that there had been any diminution of the complainant's role in the period leading up to 24th June.
A Director of the company, to whom the Complainant reported directly, also gave evidence. He denied that anything had been done to demean or undermine the Complainant's role in the company. He submitted that the change of roles was needed to address business needs and that the new position had not yet been filled. He believed the Complainant would have been a good candidate for the role. As yet no P45 has been issued in relation to the Complainant.
4. Issues for Decision:
The fact of dismissal is in dispute in this case. The issue for decision is whether a dismissal took place.
5. Legislation involved and requirements of legislation:
Section 1 of the Unfair Dismissal Act defines constructive dismissal as:
“the termination by the employee of his/hers contract of employment with the employer whether prior notice of the termination was or was not given to the employer in the 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”
6. Decision:
In such a case the burden lies on the Complainant to satisfy that it was reasonable for her to terminate her own employment due to a significant breach by the employer (Respondent) of a fundamental term of her employment contract or because of the nature and extent of the employer’s conduct and the circumstances in which the employee was expected to work. Based on her evidence I find that she has not demonstrated that her work circumstances and situation merited a decision not to return to work following her holidays. There may have been some changes in work patterns but from the evidence adduced the workplace hardly seemed intolerable nor did it seem the Complainant had been "frozen out."
The letter of 31 August from the Complainant's solicitor to the Respondent stating that she was prepared to return to work does not tally with the actions of someone who genuinely believed that their workplace had become intolerable.
Prior to an involuntary resignation an employee must exhaust all reasonable attempts to resolve their complainants and grievances with their employer. As an initial step an employee must inform their employer of the issues causing those complainants and grievances. Making the employer aware of them allows the respondent to address those concerns. There is no evidence that this initial step was properly undertaken by the claimant in this case. Not returning to work following her holidays meant that no discussion whatsoever could take place on the changes about to take place in the company and her future role. The fact that she would have had to discuss her grievance with the Director with whom she had the grievance does not excuse the Complainant from at least having some discussions on the matters in hand.
Having carefully considered all the evidence I find that the Complainant was not constructively dismissed. Accordingly, the claim under the Unfair Dismissals Acts 1977, fails.
Dated: 26th May 2016